USCIS Tightens Language on Employer-Employee Relationship and Third Party Placement for STEM OPT Students

August 21, 2018

 

USCIS has updated its revised STEM OPT page, focusing on the employer-employee relationship "requirement" and conditions for third party placements, for STEM OPT students and employers.

Read the Revised USCIS STEM OPT Page

USCIS had originally changed its website without notice on January 24, 2018. The field became aware of the revised language in April, 2018. Although USCIS did not open a comment period on the change, on May 25, 2018, NAFSA submitted a comment letter to USCIS, taking issue with both the form and substance of the website guidance. On August 17, 2018, USCIS updated its website once again, in response to public input. You can compare the various versions here:

Key differences between the January 2018 guidance and the August 2018 guidance. In an August 17, 2018 notice, USCIS stated that:

"... DHS is clarifying that STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience."

The January 24, 2018 version of USCIS' STEM OPT webpage had limited a STEM OPT employer to employing a STEM OPT student only "at its own place of business." The August 17, 2018 revision removed that language, as well as related language that had incorrectly reasoned that ICE would lack authority to visit third party sites to conduct the site visits authorized under the STEM OPT regulation.

The August 17, 2018 revision also removed the January 24, 2018 version's prohibition on STEM OPT employers use of online, telephonic, or distance learning modalities to fulfill the employer's training obligation to the student.

Some main points of the content on the USCIS STEM OPT page include:

  • "[t]o be eligible to employ a STEM OPT student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students."
  • "To establish a bona fide relationship, the employer may not be the student’s 'employer' in name only, nor may the student work for the employer on a 'volunteer' basis. Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student."
  • "An employer must have sufficient resources and trained or supervisory personnel available to provide appropriate training in connection with the specified training opportunity at the location(s) where the student’s practical training experience will take place, as specified in the Form I-983. The 'personnel' who may provide and supervise the training experience may be either employees of the employer, or contractors who the employer has directly retained to provide services to the employer; they may not, however, be employees or contractors of the employer’s clients or customers."
  • "[u]nder no circumstances would another F-1 student with OPT or a STEM OPT extension (who is undergoing training in their own right) be qualified to train another F-1 student with a STEM OPT extension."
  • "[a] STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer)."
  • Staffing and temporary agencies may seek to employ students under the STEM OPT program, but subject to the same standards of employer-employee relationship, training, and supervision. USCIS also reminds stakeholders that, "As noted in the 2016 STEM OPT rule, certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through 'temp' agencies, employment through consulting firm arrangements that provide labor for hire, and other similar relationships may not be able to demonstrate a bona fide employer-employee relationship and, therefore, may not meet the requirements of the STEM OPT extension. See 2016 STEM OPT Final Rule (p. 13079)"

Background 

USCIS's STEM OPT webpage states that the STEM OPT employer controls in general are there to "ensure the integrity of the program and provide safeguards for U.S. workers." That language is in line with major administration goals as expressed in the April 18, 2017 "Buy American and Hire American" Executive Order 13788. For example, Section 5 of that Executive Order called upon " the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse."

Ever since the 24-month STEM OPT rule was first published on March 11, 2016, DHS has consistently held the position that the STEM OPT employer and student must have a "bona fide employer-employee relationship." Although the regulations do not contain an express "bona fide employer-employee relationship" condition for a STEM OPT qualifying job or employer, DHS stated in the preamble to the final rule [81 FR 13079 par. 521], that:

"students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience."

The preamble went on state in the same paragraph that "[t]here are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including:

  • multiple employer arrangements
  • sole proprietorships
  • employment through "temp agencies"
  • employment through consulting firm arrangements that provide labor for hire, and
  • other relationships that do not constitute a bona fide employer-employee relationship

DHS reasoned in the preamble that,

"One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03)."

The employer must also attest at Form I-983 Section 4 Employer Certification that:

b. The student will receive on-site supervision and training, consistent with this Plan, by experienced and knowledgeable staff;

c. The employer has sufficient resources and personnel to provide the specified training program set forth in this Plan, and the employer is prepared to implement that program, including at the location(s) identified in this Plan;

SEVP had placed the following, somewhat cryptic response on its Study in the States website:

Questions from Designated School Officials: Can STEM OPT Students Use Staffing or Temporary Agencies?

July 7, 2016

F-1 students participating in the science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension may find their training opportunity with assistance from a temporary or staffing agency. However, all regulatory requirements of STEM OPT must still be maintained.

If a student uses a temporary or staffing agency to place them in a training opportunity, the agency cannot complete and sign the Form I-983, "Training Plan for STEM OPT Students." Only the E-verified employer that provides the actual training relevant to the student's qualifying STEM degree is authorized to sign and complete the Form I-983. The "Official with Signatory Authority" for a student's Form I-983 must meet the following criteria:

  • Be employed by the organization providing the training.
  • Be familiar with the STEM OPT student's goals and performance.
  • Have the authority to affirm that the information on the Form I-983 is true and correct.

Remember, students must submit a completed and signed Form I-983 to their designated school official (DSO) before the DSO can request them for the STEM OPT extension in the Student and Exchange Visitor Information System. Additionally, if the terms of a student's training deviate from the original Form I-983, the student and employer need to update it and provide a newly signed Form I-983 to the DSO.

This means that if a student uses a temporary agency that places them in short-term training opportunities with several different employers, the student will need to complete a new Form I-983 for every new training opportunity with each employer.

SEVP's STEM OPT Hub, describing STEM OPT employer eligibility requirements, also contains the following statement in the section directed to students and the section directed to schools:

"The employer that signs the Form I-983 must be the same entity that employs the student and provides the practical training experience."

Until USCIS updated its website, however, there had been no precise guidance on the parameters of this language.

Litigation

On July 14, 2018, information technology trade association ITServe Alliance, Inc., filed a lawsuit against DHS in the U.S. District Court for the Northern District of Texas Dallas Division. In its complaint, ITServe asks the court:

  • To treat DHS' website policy as a legislative rule that should have gone through the notice and comment regulatory process required by the Administrative Procedure Act (APA); and
  • To issue an injunction against DHS from enforcing its website policy

Read the ITServe v. DHS Complaint

An article published on the Forbes website describes an interview by Stuart Anderson of the attorney that filed the lawsuit, Jonathan Wasden.