USCIS Revises Requirements for Employment of Certain F-1 STEM OPT Students

May 15th, 2018

In April 2018, USCIS revised its website page for Optional Practice Training for STEM students that appears to bar F-1 students working pursuant to their STEM OPT (optional practical training) to be situated at third party sites. The website page 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, according to the preamble to the March 11, 2016 STEM OPT Final Rule:

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.

Based on this preamble, USCIS is improperly restricting the workplace of F-1 students working pursuant to STEM OPT. So long as there is a genuine employment relationship between the STEM employee and the employer, and both parties have complied with and signed the Form I-983 training program, which includes an obligation for the employer to provide practical training to the employee, then the employer should be allowed to place the F-1 student at the end client. Congress and USCIS are aware of this issue and hopefully we will receive favorable clarification on it.