F-1 STEM OPT Students Working at Third-Party Sites

In April 2018, USCIS updated its website regarding the employment of F-1 student and it appears to bar F-1 students in the STEM optional practical training (OPT) program from working at third-party locations. In particular, it states: “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.” However, as noted by American Immigration Lawyers Association (AILA), this is contradicted by both the preamble of the STEM OPT Regulation and ICE FAQs on the matter. The preamble to the March 11, 2016 STEM OPT Final Rule provides:

There 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…. 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.

In addition, US Immigration and Customs Enforcement (ICE) has stated in response to an FAQ that F-1 STEM OPT students may use staffing/placement agencies to find work training so long as that agency provides and oversees the training.

USCIS is concerned that the employer who is required to sign the training plan would not be able to supervise the F-1 student at a third party site. However, remote supervision of the F-1 student is certainly feasible and USCIS’ most recent website guidance is overreaching. Also, “staffing agencies” may also provide sufficient supervision and training of the F-1 student.

The good news is that AILA has received reports (as recent as June 2018) that the placement of F-1 STEM OPT students at third party sites has been approved after employers of third party STEM placements have responded to a request for evidence (RFE) for an H-1B petition.

Finally, it should be emphasized that the new unlawful presence memo becomes effective on August 9, 2018, which now subjects F-1 students to the three and ten-year bars to reentry in a broader range of circumstances. One of these circumstances would be if USCIS denies such third party placement of an F-1 STEM OPT student and makes a finding that the F-1 student violated the terms of his or her status, which would result in the retroactive accrual of unlawful presence.