STEM OPT Eligibility Allowed At Off-site Work Locations

USCIS updated their policy clarifying STEM OPT student placement at off-site third party placement work locations.

A previous website update from the agency, released earlier this year, laid down new policy that STEM OPT students are not allowed to perform their student training plans at off-site locations (i.e. a place other than the employer's office location). Subsequently, H-1B requests for evidences based on this change in STEM OPT eligibility have been experienced in the past few months. The requests for evidence hold the position that due to the third-party placement work arrangement, these students have violated their status and failed to maintain their student status, conforming to the new change in policy.  Large concerns were made widespread due to USCIS' recent unlawful presence policy change making it possible for student violations of status to ultimately trigger three year or ten year bars for the students.

USCIS has effectively clarified their policy regarding STEM OPT student eligibility at off-site third party placement work locations. The most recent updates from the agency confirm the following policy:

"Staffing and temporary agencies and consulting firms may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student and they have and maintain a bona fide employer-employee relationship with the student"

The update also state:

"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.  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."

STEM OPT Third-Party Work Arrangements Must Show a Valid Employer-Employee Relationship:

The clarified policy indicates that "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.

The policy also confirms that "under 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."

USCIS goes on to mention that "while employers may rely on their existing training programs or policies to satisfy the requirements relating to performance evaluation and oversight and supervision, the student’s Training Plan must nevertheless be customized for the individual student."

The agency provides an example: "for instance, every Training Plan must describe the direct relationship between the STEM OPT opportunity and the student’s qualifying STEM degree, as well as the relationship between the STEM OPT opportunity and the student’s goals and objectives for work-based learning. Moreover, 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)."

Insights: 

1. Employers placing student interns under the STEM OPT program are allowed to place students at end-client worksites so long as training plans obligations are and have been met and that the employer is maintaining a valid employer-employee relationship.

2. As long as employers are meeting training plan obligations for STEM OPT students at third-party worksites, the student will have been deemed to be maintaining their status. 

3. For purposes of the recent unlawful presence memo, as long as the STEM OPT requirements are being met for the off-site location, the student will not have violated their status and may avoid accruing unlawful presence due to any violation of status. 

4. Those employers facing STEM OPT or  H-1B change of status requests for evidence (RFE) inquiries involving the STEM OPT requirements for off-site work arrangements, should consult with qualified attorney personnel to address this issue.