On April 19, 2018, USCIS, without notice or formal announcement, updated their STEM OPT (Optional Practical Training) webpage, with a change in their interpretation of regulations regarding STEM OPT extension eligibility. The current STEM OPT extension regulations were implemented in 2016 and stated that an Employer must have a formal training plan, along with the completion of Form I-983, for employees in STEM OPT status.
USCIS is now interpreting the 2016 regulations to state that any placement of a STEM OPT employee to any third party work site is prohibited and that the STEM OPT worker can only be placed at the worksite of the employer to ensure that there is a valid employer-employee relationship. The webpage states the following;
“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.”
It seems that this is a recent change in position. Previously, it was reasonable to conclude that third party placement of STEM OPT workers were permissible per the regulations as this type of working arrangement was not specifically addressed or explicitly prohibited within the regulations.
The rational for this change is to allow Immigration and Custom Enforcement (ICE) to easily conduct site visits, which they are stating they are unable to do when the STEM OPT worker is at a third party site.
As this is a sudden shift in interpretation, please reach out to your Greenspoon Marder LLP Immigration & Naturalization Practice Group attorney for any further questions or concerns.
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