Without any formal announcement, the United States Citizenship and Immigration Services (USCIS) has recently updated its STEM OPT webpage to reflect a change in the agency’s interpretation of the 2016 STEM optional practical training rule for F-1 students. The webpage now clearly states that the training experience must occur on site at the employer’s principal place of business or a location to which the United States Immigration and Customs Enforcement (ICE) has authority to make visits. Its rationale is that ICE needs such access to ensure that the employer is satisfying the program’s training requirements. The USCIS states, “the [STEM OPT] training may not take place at the place of business or worksite of the employer’s clients because ICE would lack authority to visit such sites.” For this same reason, distance or online training are prohibited, even if the employee makes periodic visits to the employer’s office.
Historically, under the STEM OPT extension rule, the employer that signs the I-983 form must (1) be the same entity that provides the practical training to the student; and (2) agree to supervise and train the F-1 student for the entire duration of the program using its own personnel. The regulations did not specify whether such training and/or supervision had to take place at the employer’s principal place of business or worksite. Because the regulations did not specifically prohibit placement of F-1 students off site, it was reasonable to conclude that such placement was allowable. In addition, the I-983 form asked employers to list not only the company’s address but also the worksite name and address, suggesting that STEM OPT students could be working at an offsite location.
Implications of the Rule Change for Employers Relying on the STEM OPT Rule
Although the USCIS did not make a formal announcement regarding this change in its interpretation of the STEM OPT rule, employers must be diligent in following the mandates of the revised regulation. Employers must make sure that (1) training of STEM OPT workers occurs at a site to which the ICE has access; and (2) the personnel that provide and supervise the training experience are either employees of, or contractors retained by, the employer. Employers who are contemplating assigning STEM OPT workers at client or customer sites are strongly advised to meet with a qualified immigration attorney to discuss potential options and compliance with the USCIS regulations.
Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration