A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, May 8, 2018

Offsite STEM OPT Employment Severely Limited by New Restrictions

Consulting and staffing firms using STEM OPT workers are now faced with heavy restrictions. USCIS has inconspicuously updated the its STEM OPT web page with rules that make it much harder to legally employ STEM OPT workers offsite.

STEM OPT refers to the optional practical training (OPT) 24-month extension that STEM subject F-1 students can take. This is available to them after completion of their initial 12-month OPT. Employers that hire these students must follow certain rules themselves. They must enter the company information to the E-Verify database, allowing USCIS to keep track of employee immigration status. They also have to create and show an individualized training plan (form I-983) for the student, reporting any material changes to their designated school official (DSO).

Some companies, most notably IT consulting firms, hire these workers and assign them to work at offsite client locations. The recent changes strongly discourage this. They include:
  1. Training must be done in person, not through phone calls or e-mails.
  2. The mentor cannot be a third-party person (client of employer, employees or contractor of client)
  3. The mentor must be a senior employee (not another STEM OPT employee) in the same training location denoted in the I-983 plan.
  4. Training must take place where Immigration and Customs Enforcement (ICE) can access for site visits. This usually does not include third-party client work sites and places of business.   
  5. Training does not count if the trainee is assigned at work at an offsite location and visits the employer's site for training.
This makes it very difficult for companies that dispatch their employees to client locations to employ STEM OPT workers. Consulting and staffing companies are especially affected. STEM students should be careful when they apply for positions that would require them to work off-site at client locations. Prior consultation with an experienced employment immigration attorney is strongly recommended.

For example, when an employer located in New York assigns an employee to work at a client site in California, it would be impracticable for the employee to return to New York for training.  Similarly, ICE's authority to conduct onsite visits originates from the terms of the STEM OPT employment program. Third-party client businesses are not covered by the terms of the program.  Further, unless an employer happens to have more senior employee working at the same client job site as the STEM OPT employee, it would be very difficult if not impossible to comply with the supervision requirement under the I-983 training plan. 

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