USCIS Amends Previous Position and Now Allows F-1 STEM OPT Employees to Work at Third-Party Sites

Several months ago, the USCIS revised its website to state that F-1 STEM (science, technology, engineering, and mathematics) graduates on an OPT (optional practical training) extension were no longer able to work at third-party sites. Specifically, the USCIS expressed concern that an F-1 STEM OPT employee should not receive training experience at any third-party site, such as at the location of one of the employer’s clients, since U.S. Immigration and Customs Enforcement (ICE) would be unable to visit such a site to ensure that all training obligations were being met.

The STEM OPT extension allows graduates with STEM degrees to work in the U.S. for up to three years after they graduate as long as they meet training requirements, including the development and submission of a Training Plan along with a confirmation from the employer that a valid “employer-employee” relationship exists between themselves and the STEM OPT employee. Therefore, a STEM OPT employee should be able to work at a third-party site as long as these restrictions were met. However, the revision to the USCIS website implies that even if a valid employer-employee relationship does exist for an employee working at a third-party site, this type of arrangement is prohibited due to ICE’s inability to visit the site in order to confirm that the employer is meeting the necessary requirements. Ultimately, this rule change would limit the ability of F-1 STEM OPT workers to receive valuable professional training.

As this revision was unannounced, this change created a great deal of confusion for both employers and employees who were impacted. In order to address this concern, the American Immigration Lawyers Association (AILA) contacted the Department of Homeland Security to receive clarification about this change. On August 17, the USCIS responded, amending its previous position. The USCIS has now confirmed that third-party placements for F-1 STEM OPT employees are allowed as long as the training requirements are met and as long as a bona fide employer-employee relationship is maintained.