The United States Citizenship and Immigration Services (USCIS) recently made subtle changes to its eligibility definitions for companies seeking to employ STEM OPT F-1 visa holders. The subtle changes have major implications for employers, including staffing companies and companies that place employees off-site.
F-1 students who have earned degrees in science, technology, engineering, or math (STEM) may be eligible for a 24-month employment authorization extension pursuant to Optional Practice Training (OPT). USCIS was formerly silent on whether eligible students could be placed off-site during employment, but permitted the placement as long as the employer showed that it would oversee and supervise the student-employee in its off-site training, among other requirements. However, USCIS's recent change to the STEM OPT extension eligibility now explicitly prohibits assigning the student-employee to work off-site for a third party, even if the third-party is the employer's customer or client. USCIS now states "the training experience must take place on-site at the employer's place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements . . . the training experience may not take place at the place of business or worksite of the employer's clients or customers . . ."
The prohibition on off-site placement does not consider whether the student-employee would be supervised and controlled by the employer—it is an outright ban on off-site placement. USCIS reasons that the training must take place at the employer's place of business because ICE has authority to conduct site visits to ensure that the employer and student-employee are meeting the program requirements. If the student-employee is placed off-site for employment, ICE would not have the authority to visit the student-employee's location and could not ensure compliance with the law.
USCIS also specifically addresses temporary work agencies and staffing companies and their employment of students under the STEM OPT extension. The new guidance specifically states that "such entities may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client." These employers would be permitted to employ students in the STEM OPT program only if the student-employees would be placed at the company's place of business, such as in its own internal IT department. Employers are specifically prohibited from assigning or contracting out these students to work off-site for customers or clients, and no exception is made for temporary work agencies or staffing companies.
Curiously, USCIS quietly made this change without formal publication or opportunity for comment. USCIS simply updated its website with the new prohibition on off-site placement of F-1 STEM OPT students. Consequently, current holders of this employment authorization extension and their employers are unsure whether a previously approved Form I-983 is still valid if the employee is currently placed off-site. Organizations that need to consider reassigning student-employees who are currently placed off-site should consult with employment counsel.
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