Analysis: USCIS STEM OPT Eligibility At Off-Site Client Locations | KNG Law

04/21/2018: Updates provided by Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas

Current STEM OPT Program Requirements

As of date, to be eligible to employ a STEM OPT student, an employer must have 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.

USCIS Current Guidance on STEM OPT Training and Client Sites

USCIS provides on their website that the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. 

Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student, utilizing its own personnel. 

USCIS states that the 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.

Per USCIS: “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.”

Further, 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 retained to provide services to the employer; they may not, however, be employees or contractors of the employer’s clients or customers. 

USCIS: “the [STEM OPT] 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.” 

Analysis: ICE authority to visit client sites under current legal authority

USCIS seems to be relying heavily on Form I-983 and the ability for ICE to conduct site visits at client sites to assert that client assignments under the STEM OPT program are not valid.

This assertion by USCIS is, as of today, not well understood fully due to a lack in official policy memorandum that has been issued by the agency. Further, Form I-983, in fact, does provide a full section designated for “Employer Site Information” that does not appear to place the same limitations against client site eligibilities for the STEM OPT program. Per the current version of Form I-983, the Form requires the employer to provide both “Employer Information” and “Employer Site Information.” In addition, federal regulations do not appear to place limitations to client assignments such as the limitations provided by USCIS’ website information.

Insights:

  • Eligibility of STEM OPT student interns at client sites: USCIS appears to currently interpret that the required I-983 form for the STEM OPT Program does not give ICE the authority to conduct worksite visits at client locations of the ultimate employer of student interns, thus not qualifying STEM OPT student interns to be assigned to client locations.
  • Employers and employees participating in the STEM OPT program must assess full compliance with all form I-983 requirements.
  • Form I-983 and regulatory authority for ICE site visit authority must be assessed fully to ensure compliance with the STEM OPT program.
  • Effects and official policy of USCIS' current website guidance on the eligibilities for the STEM OPT program have not been experienced as of date. 
  • Employers assigning STEM OPT student interns at client or customer sites are strongly encouraged to consult with a qualified immigration attorney to discuss options and compliance with USCIS’ current interpretation of client site eligibilities under the STEM OPT program.