USCIS Abruptly Changes Its Position to Prohibit 3rd Party Placement of STEM OPT Students
Without any formal announcement, USCIS abruptly and surreptitiously updated its STEM OPT webpage to reflect a new interpretation of the 2016 STEM OPT rule for F-1 students to prohibit STEM OPT students from being trained/placed at a 3rd party worksite. Interestingly, although the change was made within the past few days, the webpage indicates that it was last updated on January 24, 2018.
USCIS’s justification for the change is “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. This means that 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. 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.”
Under the 2016 STEM OPT extension rule, USCIS has consistently taken the position that the STEM OPT employer and student must have a "bona fide employer-employee relationship," and “the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience." Until USCIS’s recent update, there had been no prohibition on 3rd party placement.
USCIS cannot change the rule and interpretation merely by updating its webpage without any formal rule making or memorandum. It remains to be seen how USCIS will implement its new interpretation in adjudicating STEM OPT extension applications and whether this new interpretation will give rise to more ICE onsite visits in the coming months.