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F-1 OPT STEM Update – No Third-Party Placement

4 May

U.S. Citizenship & Immigration Services (USCIS) updated guidance on the OPT STEM extension program that allows F-1 STEM program graduates to obtain an additional 24 months of Optional Practical Training (OPT) work authorization to work for employers that participate in the Government’s E-Verify program.  Third-party placement, such as placement at a client site, is no longer permitted, even if the employer maintains the required employer-employee relationship with the STEM worker.

While F-1 students are normally limited to one year of OPT work authorization following graduation, graduates of science, technology, engineering, and math programs are able to work for an additional 24 months pursuant to OPT so long as they are employed by an E-Verify participating employer at an employer-controlled location that participates in E-Verify and are working in a position that involves application of their STEM degree pursuant to a specific training plan.  Training plans must be signed by the employer and employee and must be updated with progress assessments.

Because STEM graduates must work for an E-Verify participating employer in order to qualify for a STEM extension, some E-Verify companies have employed STEM OPT workers and have placed them at third-party client sites, often with clients who do not participate in the E-Verify program.  In an effort to combat avoidance of the E-Verify requirement of the STEM extension program, the government has now clarified that STEM OPT workers cannot be placed at third-party sites because U.S. Immigration & Customs Enforcement (ICE) does not have the authority to visit third-party sites to verify the bona fides of the employment and training plan.

This policy change is drastic and came without warning or public announcement.  USCIS simply updated the USCIS website without any fanfare or publicity.  Accordingly, employers could miss this important update that impacts the proper employment of STEM OPT students.

Employers should evaluate their F-1 OPT STEM extension workers to determine whether any are placed off site with third parties.  If any are placed full-time or part-time at sites not controlled by the E-Verify employer, action is required.  Contact your Foster immigration attorney to discuss the implications of this change on the current workforce and to develop a new plan going forward.