Earlier this year, there were some changes to the USCIS website that said STEM OPT Workers cannot work at third party worksites. There was conflicting information on USCIS website vs. ICE website on this topic and some DSOs were not issuing I20s for students with third party worksite option. With the recent F1 Visa Unlawful Presence Memo by USCIS , students on STEM OPT were worried regarding working at third party worksite as they could accrue unlawful presence…Let’s look at what has changed and what is permitted for STEM OPT offsite employment.
Background – Before the Change – STEM OPT Third party worksite requirements :
USCIS website had the below exact two paragraphs, before they changed it last week. In short, the previous text tells that someone on STEM OPT cannot fulfil training requirements by working at third party worksite or client location and have remote arrangement. Also, it clearly tells that student’s practical training experience must be provided by employer’s own trained supervisor at the employer’s location. You can check the exact USCIS STEM OPT archived copy
New USCIS Update on STEM OPT Working at Third party worksite or Client Location
The original paragraphs that are in above screenshot were removed/ modified and modified to reflect as in below screenshots. Pay close attention to the highlighted text. In short the summary is below :
- Employers must maintain bona fide employer-employee relationship with the student during STEM OPT employment and training.
- Employer must have enough resources to train the student on STEM OPT and it has to be done by the employer’s personnel and NOT end client’s or customer personnel
- Students may engage in employment on STEM OPT in third party worksite or offsite as long as the bona fide employer-employee relationship is maintained and training is done by the employer’s personnel and NOT customer/ end client’s personnel.
- Check actual updated info at USCIS STEM OPT Employment
Next question : What is this bona fide employer-employee relationship ? How to establish ?
In fact, this is not something new, it has been there for quite some time since H1B FY 2011 season. You can check below articles that covered the same in the past from FY 2011 : H1B Neufeld Memo – Employer – Employee Relationship . Below are the set of questions that USCIS typically looks at to check for Right to control to make sure bona fide employer – employee relationship exists. This screenshot is taken from the Original Neufeld Memo from USCIS .
USCIS also provided full guidance on the same and we have covered the same in the past on how to establish employer employee relationship. You can read article at : USCIS Guideline to establish Employer Employee Relationship
What do you think of this change ? Will it help students ?