Stuart Anderson, Forbes
U.S. Citizenship and Immigration Services (USCIS) has reversed itself by eliminating language from its website aimed at preventing international students in science, technology, engineering and mathematics (STEM) Optional Practical Training (OPT) from working for companies at third-party locations. The USCIS change may have been in response to a lawsuit filed last month by immigration attorney Jonathan Wasden.
As discussed in an earlier article, in 2018, USCIS changed its website on STEM OPT without providing notice and comment through the rulemaking process. The issue became more urgent after USCIS also enacted changes to the rules on unlawful presence. “If the Department of Homeland Security can retroactively enforce these rules against STEM OPT students, it is very likely the students will have accrued over one year of unlawful presence before the students knew there was even a violation or issue,” Jonathan Wasden told me in an interview. “That would mean the students would be barred from the United States for 10 years – a crushing, life-changing penalty for individuals who did nothing wrong.”
It is fascinating to look at three different versions of the USCIS website over the past year to see how the agency sought to enact significant new restrictions on international students and high-tech employers.
Here is the chronology:
On March 11, 2016, the Department of Homeland Security (DHS) issued a final rule on STEM OPT that did not include the types of restrictions USCIS later put on its website. “There is simply nothing in the STEM OPT regulation, and nothing on the subject from ICE [Immigration and Customs Enforcement], that precludes a university from recommending STEM OPT for students who will be trained by their sponsors at third-party sites,” according to Andrew Greenfield, managing partner of the Washington, D.C. office of the Fragomen law firm. “In fact, the regulation provides that schools may recommend STEM OPT upon receiving a ‘properly completed and executed’ training plan.”
A screenshot of the USCIS website in November 2017, which can be seen in this exhibit from the plaintiffs in the ITServe Alliance v. Nielsen lawsuit filed by Wasden, shows that more than a year and a half after the final rule was published the USCIS website still contained no specific language barring international students in Optional Practical Training from working on third-party sites – or preventing technology companies from employing students on OPT to work at client sites.
Move ahead to 2018: In this May 2018 screenshot, exhibit 2 from the plaintiffs in the ITServe Alliance v. Nielsen case, one can see that an entire new section appeared on the USCIS website, one that enacts a major new restriction.
Here is the relevant section:
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 and they have a bona fide employer-employee relationship with the student. For instance, a student might possibly receive STEM-related training while working in such an entity’s information technology (IT) department.
“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. 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. 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.”
USCIS actually made the change to the website in January 2018. However, the change went unnoticed for four months – until April 2018 – when attorneys started receiving Requests for Evidence that appeared to be connected to the website change.
On July 14, 2018, attorney Jonathan Wasden filed the lawsuit against DHS (ITServe Alliance v. Nielsen), which argues the USCIS change in its website is a legislative “rule.” A legislative rule is considered unlawful if it is not implemented in compliance with the Administrative Procedure Act. “The rule eliminates information technology companies who create, administer, or consult on projects at a client’s location,” according to the plaintiffs. “The rule demands any student seeking STEM OPT perform all work physically at the physical location of the sponsoring employer. The rule prohibits student professions on STEM OPT from receiving training or education from anyone not employed with the same employer. Defendant did not comply with the APA’s [Administrative Procedure Act] notice and comment requirements before making this rule. Defendant is also unlawfully enforcing this rule retroactively.”
On August 17, 2018, USCIS changed its website again, this time eliminating nearly all of the language that brought on the lawsuit. (You can see the latest version of the USCIS website here.) The new language on the USCIS website backtracks on the agency’s prior declaration about contracting companies by including this sentence: “STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student.”
There still may be continued litigation over the USCIS use of the term “bona fide” on its website. “Neither the regulation nor Form I-983 use the term ‘bona fide employer.’ The Form I-983 does not have a box for employers to check or fill out that includes the term ‘bona fide employer,’” according to the plaintiffs in the ITServe Alliance v. Nielsen lawsuit.
According to Wasden and his co-counsel on the case, Dallas immigration attorney Kavitha Akula, the government may be trying to moot out the case (end the litigation by saying everything the plaintiffs asked for in the complaint has already been granted) by apparently giving up on all of the rule changes made previously during the year. However, Wasden told me in an interview, “USCIS will have a hard time arguing the case is moot while leaving the term ‘bona fide employer’ undefined.”
So where does that leave us? “U.S. Citizenship and Immigration Services announced today that it has updated its website to indicate that STEM OPT F-1 students are now permitted to engage in training programs that take place at a third-party worksite, such as a client site, as long as all training obligations and requirements are met,” declared an August 17, 2018 alert from Berry Appleman & Leiden LLP (BAL), an immigration law firm. “The update removes language that the agency had previously added to its website without notice stating that STEM OPT students were prohibited from being placed at client sites . . . The USCIS announcement allows employers to place STEM OPT students at offsite locations and provides greater clarity to employers after months of uncertainty.”
This episode on STEM OPT and work at client sites confirms what many suspected about U.S. Citizenship and Immigration Services: Those making decisions at USCIS don’t like international students or technology companies very much and are willing to go to great lengths to make life more difficult for them.