USCIS Clarifies That STEM OPT Offsite Placements Are Permitted in Some Instances

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At a glance

• Reversing a position it took earlier this year, USCIS today clarified that employers may place F-1s working on STEM OPT at third party worksites as long as all training obligations are met, including a bona-fide employer-employee relationship.
• USCIS also took the opportunity to remind employers and F-1s to adhere to all STEM OPT reporting requirements.

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The situation

In a reversal of a short-lived policy, USCIS has updated its STEM Optional Practical Training (OPT) webpage, clarifying that employers can place F-1s on STEM OPT at client and customer worksites provided that all STEM OPT regulatory training obligations are met. Earlier this year, USCIS made an unannounced change to the STEM OPT webpage, taking the position that offsite STEM OPT employment was prohibited in all instances, despite USCIS regulations that do not establish such a prohibition.

Today’s change reverses that prohibition. Now, as long as the STEM employer and the F-1 have a valid employer-employee relationship, and the employer that signs the STEM training plan is the same entity that employs the F-1 student and provides the practical training experience, third party placement can be permissible under the STEM OPT program.

USCIS has also updated the STEM OPT webpage with reminders to employers and employees about their reporting obligations under the STEM OPT program. This includes the obligation to report material changes in the training opportunity to the Designated School Official (DSO) at the earliest opportunity, and the obligation to report the STEM OPT student’s termination of employment or departure to the DSO within five business days. Failure to adhere to these and other reporting obligations are violations of status, and could subject the F-1 to the accrual of unlawful presence.

What this means for employers and employees

Today’s shift in policy comes after considerable advocacy from the higher education and business communities following the unannounced policy change on the STEM OPT webpage. Though the STEM OPT regulations do not expressly prohibit offsite employment, USCIS had claimed that a broad prohibition was necessary to ensure ICE’s ability to conduct site visits and enforce program requirements. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.