Sometimes, Attorneys have to be able to read not only what is expressly stated in the rules, but also what is carefully left out. I have had several clients calling me for the past several weeks to inquire after the final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). As stated on the DHS website:
F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in and maintain good standing with E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply on or after May 10, 2016, for a 24-month extension of such authorization.
One of the requirements in the final rule requires the submission of a formal training plan. A very important part of this formal training plan is the articulation of the STEM OPT student’s learning objectives and additionally the affirmation of the employer’s commitment to helping the student achieve those objectives.
To fulfill this requirement, a student and their employer must complete and sign Form I-983 and submit it to the student’s DSO. DHS has created a special site called the STEM OPT Hub with information. Specifically, the USCIS has a training tutorial for employers trying to complete Form I-983.
A persistent issue for IT consulting companies is whether the modified Form I-983 may be completed by an employer seeking to employ a student at an end-client site. USCIS has not directly addressed this question. However, they have made it abundantly clear that they do not foresee the use of the I-983 by IT consulting companies. I come to this conclusion based on a reading of Section IV of the Final Rule – Discussion of Comments and Final Rule (81 FR 13079).
Specifically, the following comment and response:
Comment: DHS received several comments concerning various types of employment relationships and whether F-1 students could request STEM OPT extensions based on such relationships. For example, commenters suggested that an F-1 student be allowed to obtain a STEM OPT extension based on a business established and staffed solely by the student. Commenters stated that such a change would allow students to remain in the United States to start their own companies, while also improving their ability to directly benefit from their own innovations. Other commenters suggested that DHS allow STEM OPT students to engage in employment with more than two employers and be employed through a temporary agency or a consulting firm arrangement that provides labor for hire. A commenter asked DHS to clarify its position relating to placement agencies, asserting that there may be some legitimate situations in which a staffing company that supervises STEM students should not be prohibited from participating in the STEM OPT extension. In addition, a commenter suggested that DHS expand the definition of “supervisor” to include advisory board members of venture capital firms, faculty advisors, and “start-up mentors.” The commenter stated that many start-up companies are not able to offer salaries before they become profitable (instead offering compensation plans that might include stock options or alternative benefits), and recommended that DHS allow STEM OPT students to work for such companies.
Response: There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP’s April 23, 2010 Policy Guidance (1004-03).
DHS, moreover, anticipates that it will be very unusual, though not expressly prohibited, for students to work with more than two employers at the same time during the STEM OPT extension period, given that each employer must fully comply with the requirements of this rule and employ the student for no less than 20 hours per week.
DHS also clarifies that F-1 students seeking STEM OPT extensions may be employed by new “start-up” businesses so long as all regulatory requirements are met, including that the employer adheres to the training plan requirements, remains in good standing with E-Verify, will provide compensation to the STEM OPT student commensurate to that provided to similarly situated U.S. workers, and has the resources to comply with the proposed training plan. For instance, alternative compensation may be allowed during a STEM OPT extension as long as the F-1 student can show that he or she is a bona fide employee and that his or her compensation, including any ownership interest in the employer entity (such as stock options), is commensurate with the compensation provided to other similarly situated U.S. workers.
There are several aspects of this response that help us arrive at a reasonable conclusion. The following are salient:
- “There are several aspects of the STEM OPT extension that do not make it apt for employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship.” In other words, the Service does not consider a relationship through a “consulting firm” as a bona fide employer-employee relationship.
- “DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan.” In this case, the Service does not attempt to conceal the fact that it considers the entity responsible for training to be the same entity that should be employing the student.
- “Another concern is the potential for visa fraud arising from such arrangements.” Very clear…they will seek to enforce this aspect of the rule through the site visit program (81 FR 13062)
- To reiterate… “the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.”
At this point, the immigration lawyer community does not have enough “anecdotal evidence” and/or experience to steer clients in the right direction. However, from past dealings with the Service, it is always better to tread a very cautious line.
Better safe than sorry!
 Read – “do not want”