By Roujin Mozaffarimehr and Eddie Corona
Without any warning, USCIS has re-interpreted the STEM OPT Rule from 2016 to eliminate third party placements and product implementations at a client’s worksite. The current STEM OPT regulations at 8 CFR 214.2(f) do not have any explicit bars to employers placing their STEM OPT employees off-site.
While USCIS seems to have made this change on January 24, 2018, the effects of this change only now seem to be coming to light. This is most likely because this was not issued as a policy memorandum, but rather USCIS simply changed its website. The USCIS website now states that a student cannot work at the worksite of a client or customer of the employer and justified this conclusion on the grounds that ICE must be able to conduct periodic site visits of the student’s worksite. USCIS also determined that an employer does not fulfill its training obligation to provide “a structured and guided work-based learning experience by having the student make periodic visits to the employer’s place of business to receive training…” Remarkably, the STEM OPT rule does not explicitly state that ICE must have access to the student’s worksite. Rather, the rule states: “DHS, at its discretion, may conduct a site visit of any employer. The purpose of the site visit is for DHS to ensure that each employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with any Form I-983 or successor form completed and signed by the employer.”
Whether USCIS’s interpretation of the rule is correct or not, it does appear that the current policy prohibits a STEM OPT student from working at an employer’s client / customer site. This includes product companies and IT consulting companies alike, implementation partners, and any other circumstance where the student is not at the employer’s own worksite.
What this means for Employers
Employers should exercise extreme caution and conduct their due diligence when hiring STEM OPT students for purposes of end-client placements regardless if the DSO endorses the end-client STEM OPT Form I-20. The USCIS interpretation expressly states that an employer will not fulfill its obligation to the student if the student is working at a business client’s worksite location. Employers should also expect Requests for Evidence (RFE’s) if they have recently applied for a STEM OPT student to work at an end-client placement.
What this means for Students
Our office has experienced push-back from certain Designated School Officials (DSOs) explaining that the USCIS does not accept client placements for STEM OPT students. As of now, we are unaware as to the extent that ICE has notified all DSOs of this interpretation. Thus, both the employer and student employee should be diligent when applying for a STEM OPT student position.
Accepting a placement at an end-client location could potentially mean that the student is deemed to be violating their F-1 status.
It is unclear how the government will treat students who are already at third party sites pursuant to existing STEM OPT approvals. Student in this situation should be aware that when they seek a further immigration benefit, such as H-1B, they may be asked to show that they properly maintained their STEM OPT status, which may include evidence that they were only working at the employer’s worksite and not a client’s worksite.