Offsite STEM OPT Employment Severely Limited by New Restrictions

Consulting and staffing firms using STEM OPT workers are now faced with heavy restrictions. USCIS has inconspicuously updated the its STEM OPT web page with rules that make it much harder to legally employ STEM OPT workers offsite.

STEM OPT refers to the optional practical training (OPT) 24-month extension that STEM subject F-1 students can take. This is available to them after completion of their initial 12-month OPT. Employers that hire these students must follow certain rules themselves. They must enter the company information to the E-Verify database, allowing USCIS to keep track of employee immigration status. They also have to create and show an individualized training plan (form I-983) for the student, reporting any material changes to their designated school official (DSO).

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Some companies, most notably IT consulting firms, hire these workers and assign them to work at offsite client locations. The recent changes strongly discourage this. They include:

1. Training must be done in person, not through phone calls or e-mails.
2. The mentor cannot be a third-party person (client of employer, employees or contractor of client)
3. The mentor must be a senior employee (not another STEM OPT employee) in the same training location denoted in the I-983 plan.
4. Training must take place where Immigration and Customs Enforcement (ICE) can access for site visits. This usually does not include third-party client work sites and places of business.   
5. Training does not count if the trainee is assigned at work at an offsite location and visits the employer's site for training.

This makes it very difficult for companies that dispatch their employees to client locations to employ STEM OPT workers. Consulting and staffing companies are especially affected. STEM students should be careful when they apply for positions that would require them to work off-site at client locations. Prior consultation with an experienced employment immigration attorney is strongly recommended.

For example, when an employer located in New York assigns an employee to work at a client site in California, it would be impracticable for the employee to return to New York for training.  Similarly, ICE's authority to conduct onsite visits originates from the terms of the STEM OPT employment program. Third-party client businesses are not covered by the terms of the program.  Further, unless an employer happens to have more senior employee working at the same client job site as the STEM OPT employee, it would be very difficult if not impossible to comply with the supervision requirement under the I-983 training plan. 

USCIS to Beef Up H-1B Site Visits: Targeting Dependent Employers and Off-Site Employment

As USCIS is receipting hundreds of thousands of H-1B cap cases, the agency announces that it will undertake multiple measures to further counter H-1B visa fraud and abuse. These measures include a "more targeted approach" when conducting onsite visits of the locations of H-1B employment.  As we recently predicted, these measures are expected as part of the new administration's efforts to review all visa programs.  

It is important to note that site visits are nothing new.  In fact, they have been on-going for many years since the Obama Administration.  For example, according to a 2009 letter by USCIS Director Alejandro Mayorkas to Sen. Charles Grassley, USCIS was conducting 25,000 site visits to verify H-1B employment information such as salary, job location, existence of employment, etc.

According to USCIS, the new targeted approach will focus on (1) Employers whose information cannot be verified through commercial database, (2) H-1B dependent employers, and (3) off-site employment.

An employment is considered H-1B dependent if it has 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or  26 to 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or 51 or more full-time equivalent employees of whom 15 percent or more are H-1B  nonimmigrant workers.  H-1B dependent employers normally are required to have taken good faith efforts to recruit qualified U.S. workers before hiring an H-1B worker.

Off-site employment happens when an employer sends its H-1B employee to work at another business entity's job site.  Typically these are consulting firms that place their professional employees to work at other companies as consultants.  Under a 2010 USCIS policy memo, cases involving off-site employment must provide evidence to prove that there is a valid employer-employee relationship between the H-1B petitioner and employee before their H-1B petition can be approved.

According to USCIS, some qualified American workers have been ignored or unfairly disadvantaged under the current H-1B program. These measures are intended to combat fraud and to protect U.S. workers.   The agency has also created a designated email address through which any interested party may submit information regarding any potential H-1B fraud or violations.

Employers should be extra careful now with their H-1B petitions to make sure that they comply with the regulation. Further, since these on-site visits are unannounced, employers should also clearly advise and train their staff to properly receive any requests for site visits.  H-1B employers should also make sure that their public inspection folders are up to date with all required documentation such as the Labor Condition Application.  They should also be ready to provide H-1B employees' payroll documents upon request.  Failure to meet the requirements of these site visits could result in denial of petitions and other serious legal consequences.