The USCIS posted a reminder to F-1 students working on OPT and OPT STEM about monitoring the duration of all periods of unemployment as exceeding the cumulative allowance can leave a student without legal status and impact future change of status filings. One of the most common RFE’s issued in H-1b cap cases is demanding proof of status of students who have engaged in any type of employment whether OPT, STEM OPT, or CPT. The USCIS has created a helpful counter to assist. During this time of COVID as instances of temporary unemployment have become more common, this is a timely reminder.
It is being reported by Forbes, that ICE has now started site investigations of OPT STEM workers to verify that their employment is in compliance with USCIS regulations and policy. The 2 primary questions they are likely to address are: 1. Is the student being paid at least a Level 1 prevailing wage ? and 2. Is the student being provided training by their employer in accordance with the training program (I-983) submitted to the school and the USCIS ? As an employer, now may be a good time to audit your OPT STEM workforce and insure that you are in compliance.
In a major reversal today, the USCIS has announced that it is withdrawing its web-site guidance regarding the prohibition of OPT STEM workers being placed at 3rd party sites and have announced that the employment of OPT STEM workers being placed at a 3rd party site is permitted as long as all training obligations are met by the staffing company. A huge shout out to all of the universities, trade organizations such as TechServe Alliance, IT staffing companies, and yes lawyers and organizations such as AILA that lobbied hard to have this policy changed.
For those of you in the staffing/consulting business employing OPT STEM workers at 3rd party sites that were hoping the USCIS web-site policy was not going to be enforced or that the pleas of universities to the White House or the threat of APA litigation over the “web-site regulation” in the face of an existing regulation, may result in positive change, I think it is time to accept defeat and bury the body. Many end clients and MSP’s are sending notifications to their suppliers of contingent workers that they are aware of the change in policy and are encouraging or in some cases, demanding that OPT STEM workers be removed from their worksites. In addition, the USCIS has started to issue RFE’s in I-765/EAD filings referencing the new USCIS policy. Pease see an excerpt from an RFE below:
Moreover, the training experience must take place on-site at the STEM employer’s place of business or worksite(s) and may not take place at the place of business or worksite of the STEM employer’s clients or customers.
Staffing and temporary agencies may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student at its own place of business
If you have not yet done a case by case analysis of each OPT STEM and OPT worker on your payroll, I encourage you to do so.
DHS has release its Agency Rule List for Spring 2018. In this release the current administration outlined their rule change wish list, which includes:
1. Scrapping the H1b lottery. Possibly requiring preregistration for H1b’s.
2. Revisions to H1b definitions for specialty occupation. We’ve already seen some Officers use narrower interpretations than what we believe the regs plainly state.
3. Ending the H4 EAD program.
4. OPT reform. We have already seen some of this through the USCIS website update restricting 3rd party placements.
5. B visa reform. We anticipate that they are seeking to narrow the allowable business activities on B1 visas.
6. New Fee schedule. Because USCIS Officers are having to work overtime to generate all these RFE’s for you! [satire]
These are changes that will not take effect immediately and must go through the regulatory rule change process. HLG will be monitoring these potential changes and will update our clients when/if they affect your business.
The Trump Administration has handed down a new policy memorandum targeting international students by changing the definition of unlawful presence to essentially be synonymous with a status violation. The new memo is slated to go into effect on Aug 9, 2018. The penalty for accruing 180 days of unlawful presence is a 3 year bar from the U.S. The application of the memo to actions that occurred prior to Aug 18, 2018 are quite complicated and must be assessed on a case by case basis. However, what is clear, is that any status violations that occur after Aug 9, 2018 will be treated as accruing unlawful presence. For those OPT STEM students working in the staffing industry, it is believed that this new policy change is directed precisely at you to self-enforce the new prohibitions promulgated by a web-site update that all but essentially prohibits OPT STEM students from being employed by staffing firms at 3rd party sites. There is a public comment period that is open until June 11, 2018. Changes to this policy memo based upon public comments are possible prior to Aug 9, 2018. We will update as developments occur.
According to a PEW study, until 2016, the US saw a huge increase in the number of international students graduating from US schools and remaining in the US to work in STEM jobs. Over the next 2 years, it will be interesting to see if this number drops drastically due to recent policy changes by the Trump Administration which have significantly curtailed the use of the OPT STEM program and have placed a number of additional obstacles in the way of international grads seeking STEM related jobs.
There remains a number of unanswered questions regarding the Jan 2018 web-site changes to the use of the OPT STEM program in the circumstances of a 3rd party placement but, several schools have issued announcements indicating that no 3rd party placements are appropriate for OPT STEM workers. Below is the interpretation and direction from one US school.
This email describes a very important update in the interpretation by USCIS of STEM OPT requirements for staffing companies who are supervising STEM OPT employment. We are notifying many students, alumni, and employers about this change, so kindly disregard this notice if it does not apply to you. https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt#_Eligibility_for_the
Our university offers international F-1 visa students three sequential phases of full-time employment:
1. Curricular Practical Training (CPT): 12 months or longer of employment.
2. Post completion Optional Practical Training (OPT year 1): 12 months of employment.
3. STEM extension of OPT: 24 additional months of employment after OPT year 1 has ended.
The STEM OPT regulation that USCIS dramatically clarified last week is highlighted here:
“The Employer’s Training Obligation: Staffing and Temporary Agencies
“Staffing and temporary agencies may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student at its own place of business…
“Such entities 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…
“Moreover, the student’s practical training experience must be provided by the employer’s own trained or supervisory personnel at the employer’s own place of business or worksite(s), to which ICE has authority to conduct employer site visits to ensure that the employer is meeting program requirements…”
Our university is not attempting to offer legal advice to you on the immigration impact of this. Also, this change in USCIS policy might be reversed. The change applies to STEM OPT, but we will monitor the situation for future changes in CPT and OPT policies. Meanwhile, we think it is prudent that we act now and plan wisely to avoid possible issues with client projects.
1. Many CPT students are working at staffing companies. The changes listed on the USCIS website page do not apply to CPT students.
2. Some of our OPT (year 1 of OPT) students not yet in STEM OPT have been working at client sites. The new USCIS website page does not apply to regular (year 1) OPT students. However, if a transition to internal employment located at the staffing company’s office can be arranged, that should be done prior to the employee applying for STEM OPT. If employment needs to end due to the student nearing the STEM OPT phase, please consider as a possible solution hiring an experienced developer from our CPT program.
3. For staffing company and agency employers with STEM OPT employees who are working at client sites, we recommend a transition of the employees into projects at the staffing company’s office. If this is not feasible, please work toward a smooth transition if needing to end the employment with the current client. If a replacement contract employee is needed, please consider our experienced CPT candidates in job search who are currently available for hire.
In addition, Bloomberg Law, a highly respected resource for US corporations provided a nice summary worth reading.
More info. is expected from the NAFSA annual conference to be held at the end of May.
We will update you as developments occur.
HLG has published the August edition of Immigration Advocate featuring an article on the OPT STEM rules. Check it out here.
Many people read the headlines last week and saw that the Supreme Court had ruled that President Obama had exceeded his Executive Action authority on immigration and wondered if it impacted any of the employment related executive actions such as H-4 EADs or OPT STEM, etc and the answer is not at all. The Supreme Court SCOTUS DAPA decision impacted only one aspect of President Obama’s executive actions, namely, the DAPA program. All other programs were left intact.