8/17/18 – USCIS Changes Course on Third-Party Placement of Foreign Students

On 8/17/18 USCIS updated the section on their website that deals with STEM OPT participants working at Staffing and temporary agencies and consulting firms.

The old language, which appeared without advance or separate notice stated that STEM OPT students were prohibited from being placed at client sites.

The new language in part states: “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.”

The full passage from uscis.gov is below:

The Employer’s Training Obligation: Staffing and Temporary Agencies

Staffing and temporary agencies and consulting firms 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 and they have and maintain a bona fide employer-employee relationship with the student.

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.

As noted in the 2016 STEM OPT rule, certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ‘‘temp’’ agencies, employment through consulting firm arrangements that provide labor for hire, and other similar relationships may not be able to demonstrate a bona fide employer-employee relationship and, therefore, may not meet the requirements of the STEM OPT extension. See 2016 STEM OPT Final Rule (p. 13079).

As part of the STEM OPT extension, employers must complete the appropriate parts of Form I-983, Training Plan for STEM OPT Students. In this form, employers attest that:

They have enough resources and trained personnel available to appropriately train the student;

The student will not replace a full- or part-time, temporary or permanent U.S. worker; and

Working for them will help the student attain their training objectives.

DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.