USCIS Narrows Interpretation of STEM OPT Regs to Permit Only In-House Employment

USCIS recently updated its STEM OPT website with what appears to be a new interpretation of the 2016 STEM OPT regulations.  More specifically, the 2016 STEM OPT regulations added more formality to the STEM OPT process, requiring employers and students to execute a formal training plan (Form I-983) outlining the training provided and establishing the existence of a bona-fide employer-employee relationship between the employer and the STEM OPT student.  

USCIS’s new regulatory interpretation focuses on the nature of the bona fide employer-employee relationship and now requires all STEM OPT training to take place on-site at the employer’s place of business.  The agency notes that the main reason for this is that Immigration and Customs Enforcement (ICE) must have authority to conduct an employer site visit to ensure compliance with the STEM OPT program requirements and that ICE would not be authorized to conduct such site visits at client or customer worksites as well as in arrangements involving telephonic, online or other long-distance learning to fulfill the employer’s training obligations.

It remains to be seen whether USCIS will provide any more formal notice of this policy change, such as a policy memorandum. It also remains to be seen whether a website update with no notice to the public is sufficient to promulgate a new binding regulatory interpretation.  

In light of this policy change, however, STEM OPT employees who have undergone H-1B sponsorship should expect additional scrutiny regarding their STEM OPT employment for petitions requesting a change of status. Furthermore, schools will need to consider how they will address this policy change with students who have already  been authorized for STEM OPT involving off-site employment.

D&S is continuing to monitor this developing situation and will provide updates as they become available.

UPDATE: USCIS has updated its website to reflect that employers may still place F-1 employees working pursuant to STEM OPT at third party worksites provided there is a bona fide employer-employee relationship and all other training obligations are met.