- The US has reversed its stand that global STEM students undergoing optional practical training (OPT) cannot be placed at customer work sites.
- International students are eligible for a 12-month OPT under which they can work in the US.
- Those who have completed their degrees in science, technology, engineering and maths (STEM) are eligible to apply for a further OPT extension of 24 months.
The United States Citizenship and Immigration Services (USCIS) has reversed its earlier stand that international STEM students undergoing optional practical training (OPT) cannot be placed at customer work sites. The USCIS made changes on its website on Friday night removing these restrictions, but reiterated that employers need to meet their training obligations.
In addition, in keeping with the STEM-OPT Regulations of 2016, USCIS continues to frown on arrangements that “provide labour for hire” and those where a bona fide employer-employee relationship cannot be demonstrated.
Both the requirements of meeting training obligation and existence of a bona fide employer-employee relationship have always been an integral part of the STME-OPT program.
International students are eligible for a 12-month OPT under which they can work in the US. Those who have completed their degrees in science, technology, engineering and mathematics (STEM) are eligible for applying for a further OPT extension of 24 months. Open Doors Survey (2017) indicates that there are around 1.9 lakh Indian students in the US, with STEM courses being the top draws.
The immigration agency’s earlier stand on prohibition of third-party placement (at customer worksites) was displayed by it on its website (rather than introduced by way of formal change in regulations). This shift in stand, which came to light in April, meant that training of STEM students under the OPT could be carried out only inhouse at the employer’s own worksites. It dented work opportunities for international STEM students, as IT service or consulting companies, or staffing companies which typically placed these students with teams operating at customer worksites, could no longer hire them.
Cyrus Mehta, New York-based immigration attorney and founding partner of a law firm, told TOI: “The USCIS appears to have reversed its prior guidance by not categorically barring offsite placement of STEM-OPT students. Such students may engage in training that takes place at customer sites as long as the training obligations are met, and the employer maintains a bona fide employer-employee relationship. In addition, the training must be provided by the employer rather than a customer.”
As reported by TOI in its July 17 edition, ITServe Alliance, one of the largest associations in the US, comprising IT services, staffing and consulting companies, had filed a lawsuit against the prohibition. The association had pointed out that the ban had resulted in students being denied permission by designated school officials (DSOs) to work with companies in this sector. Further, as this change was being enforced retroactively, it could adversely impact students who wanted to obtain H-1B (work) visas in future and it could also debar them from entering the US for several years.
USCIS on its website states that to establish a bona fide relationship, the employer must not be the student’s employer ‘in name only’ nor can the student work for the employer on a ‘volunteer basis’. Moreover, the employer which signs Form I-983 (which is an affirmation of their commitment to the OPT program) must be the same entity that provides practical training experience to students.
“USCIS has often placed great emphasis on day-to-day control of an employee’s work as being one of the prime indicators of employer-employee relationship. If a consulting company places an employee at a third-party location, without exercising adequate precautions, that control is likely to cease to exist, “say Rajiv S Khanna, managing attorney at Immigration.com.
“As not all third-party placements qualify, students and employers must ensure strict compliance with STEM-OPT training requirements, report material changes in employment to DSOs, carry out the training plan set out in Form I-983, have sufficient resources and trained personnel to provide the training and provide working conditions commensurate with those provided to US workers. Students and employer must maintain evidence of the training program and how a bona fide employer-employee relationship has been maintained, “ Emily Neumann, Houston based partner with the law firm of Reddy & Neumann told TOI.
“A written training program document, having a manager of the company at the customer worksite who oversees the work of the STEM student, organizing classroom training to buttress the hands-on-work training, avoiding submission of work-hour time sheets used for billing purposes by the students indicate that a bonafide training program,” says David Nachman, managing attorney at NPZ law group.
A danger still lurks for students if the USCIS determines that an employer-employee relationship was not maintained. This can result in the student being debarred from re-entry to the US for several years, sums up Mehta.