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By: Kenneth Levine
In April 2018, USCIS issued official guidance that precluded the assigning of a U.S. employer’s STEM OPT employees to off-site third-party locations. A STEM OPT employee is a foreign national who is pursing “practical training” through a U.S. employer after having received a degree from a U.S. college/university in a science, technology, engineering or mathematics program. This development was viewed as especially detrimental to IT consulting companies, whose business model is largely predicated on providing IT services to 3rd party client sites. These client sites have always served as a fundamental training ground for recent graduates of information technology programs.
In issuing the April guidance, USCIS appears to have blatantly disregarded conflicting guidance that remains in effect. 3rd party placement of STEM OPT employees by staffing agencies is clearly permitted in the preamble to the STEM OPT regulation (8 CFR 214.16 and 81 FR 13040, 3/11/16) and ICE’s “Frequently Asked Questions and Answers” document.
The ICE FAQ addresses this issue as follows:
STEM OPT students are permitted to use staffing/placement agencies to find a training opportunity. However: … [a]ll STEM OPT regulatory requirements must be maintained, and … [t]he staffing/placement agency cannot complete and sign the Form I-983 as an employer, unless … the staffing/placement agency is an E-verified employer of the student, and … [t]he staffing/placement agency provides and oversees the training.
FMG Immigration Attorneys have received recent independent verification from colleagues that H-1B petitions are being approved where USCIS sought to challenge eligibility for the visa based on 3rd party placement of the OPT STEM employee. Accordingly, so long as it can be demonstrated that each element of the above referenced ICE guidance for 3rd party placement (including full compliance with the I-983 training program) have been satisfied, then there is no reason for staffing companies to discontinue this practice.
For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].