**Updated April 26, 2018** Ellis Porter has received notice of universities updating their STEM OPT policies to reflect the changes posted by USCIS. Specifically, these institutions indicate that, as of May 1st, they will not process STEM OPT applications when:
- the applicant is not supervised on-site by the employer listed on the I-983, including staffing agency or temporary agency employment
- the employment location is a work from home or telecommuting position, with no on-site supervision from the employer
Guidance from one major university states that they will not consider current employment in such circumstances to be a status violation, however. The university also indicated that they would not immediately apply the new standard and continue to process applications under the previous standard until May 1st.
**April 20, 2018**
Despite issuing no formal announcement, USCIS seems to have made an important update to its interpretation of policy regarding the placement of STEM OPT recipients. This change has reverberated through the staffing and consulting industry, already seen as being in the crosshairs of immigration policy under the new administration. And it did all this with a quiet edit to its webpage.
The current Optional Practical Training (OPT) program allows eligible F-1 students to apply for temporary employment authorization for a 12-month period. Students with degrees in science, technology, engineering or mathematics may apply for a 24-month “STEM OPT extension.” This period of training is critical for career objectives and is often used as a stepping stone between the student and employment visas.
New Language Regarding Off-Site Work
New language on the site states that “[T]he 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. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.... [Staffing agencies] may not 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."
Simply stated, the USCIS takes the position that the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites. The regulations are actually silent on the issue of worksite.
It's noteworthy that the last change to the webpage in question was back on January 24th. Could such a major change have “flown under the radar” for three months? How is this meant to impact those who already possess approved employment under the program, particularly for those in the cap-gap? There are no clear answers.
Given the lack of formal regulatory processes, policy memo, or even a press release, it's unclear when the change is meant to be implemented, whether it's prospective in nature, and whether such a change would stand up to judicial scrutiny.
More Changes Coming?
DHS regulatory agenda released in recent months indicate that a proposed rule that comprehensively reforms the OPT program for foreign students is in the works. The rule will aim to reduce fraud and abuse and improve the protection of U.S. workers who are perceived to be negatively impacted by the employment of foreign students.
Designated School Officials (DSOs) make the determination on whether the training program meets requirements of the program and ultimately make the recommendation of OPT in the SEVIS system. Some DSOs have historically taken a more restrictive approach to the employer-employee relationship and would not issue endorsements for off-site employment. Yet there is no suggestion that any school that has already issued endorsement in such a training arrangement has sought to invalidate that previously granted OPT or would seek to do so under the new language. As yet, there have been no changes to the related "Study in the States" site maintained by DHS.
- No OPT has been invalidated and can continue to be utilized for ongoing employment.
- Staffing and temporary agencies may continue to employ students under the STEM OPT program if they are the entity providing the practical training experience to the student at its own place of business.
- We do not advocate any immediate changes in previously authorized training arrangements.
- Staffing companies should prepare for further interpretation of this change, without notice.
- Industry representatives should immediately contact their federal representatives and explain the importance of this program to trainees and industry, alike.
- It's possible that this change will manifest in the denial of future extension requests. Ellis Porter will continue to monitor the situation and update our readers accordingly.