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Green Cards US Immigration Policy Visas - H-1b, L-1, E, O, TN

Changes to STEM OPT

It has been long rumored that the current Administration would try and eliminate the STEM OPT program. It appears that they have now struck a major blow to its use by staffing and consulting companies. They did not issue a new policy memorandum nor did they publish a proposed change to the existing regulation but, they have changed the content on the USCIS web-site. A review of these changes makes it very clear that there is a prohibition on the placement of any OPT STEM worker at a 3rd party site. The new description specifically refers to the concept of a “training experience” and states:
” Such entities [staffing companies] may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. As noted above, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student.”

Given that this was announced via the USCIS web-site and did not go through any formal rulemaking means that it is very likely ultra vires and a prohibited interpretation but, unless an employer or other entity files a Federal lawsuit against the USCIS, individual examiners adjudicating I-765 applications based upon an I-983 with a staffing company as an employer are likely to follow this guidance. Further, it is expected that schools would not approve an I-983 with a staffing company as an employer.

For individuals with an already approved EAD card working for a staffing company, we do not believe this change impacts you.

It is most interesting that the web-page in question claims it was last updated in Jan of 2018 however, that is clearly not accurate. Whether the date was left in place in error or whether it was designed to appear as if there has been no change is unknown. Kudos to the Murthy firm for noting the web-page change and alerting the business immigration community.

We will provide updates as more information is provided.

Update as of 4-23-2018 Unofficial information from USCIS is that there is nothing new and that the web-site was updated in Jan 2018 and that guidance has been in effect since then. In speaking to a few FSA’s at universities, no new directive has been provided to them. The annual NAFSA meeting is in early May and this issue is expected to be a topic of discussion.

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