Businesses thrive on certainty but erratic government policies can cause companies to stumble. On trade and immigration, the Trump administration has not been friendly towards business: Uncertainty on the impact of new tariffs has inhibited investment, while immigration actions have encouraged companies to move work out of the country and scramble to understand shifts in policy. A case in point is the government’s policies on international students in training status and work on third-party customer sites.
In April 2018, U.S. Citizenship and Immigration Services (USCIS) changed its website without notice and appeared to prohibit international students in science, technology, engineering and mathematics (STEM) Optional Practical Training (OPT) from working at third-party locations. This raised more than a few questions: Is it actually against the law or current regulations for students in STEM OPT status to work at third-party sites? Would individuals who continue to do so be violating their immigration status? Does USCIS have the authority to make this change, particularly in this manner?
To answer these and other questions, I interviewed Andrew Greenfield, managing partner of the Washington, D.C. office of the Fragomen law firm. Andrew has more than 20 years of experience in employment-based immigration law.
Stuart Anderson: What is the difference between Optional Practical Training (OPT) and STEM OPT? How do the rules differ?
Andrew Greenfield: International students holding “F-1” visa status and pursuing degree programs in the United States are typically granted one year of Optional Practical Training (OPT) in order to gain work experience related to their major fields of study. Students commonly complete their studies before commencing OPT so they can seek employment for a continuous year after graduation. For students whose degree is in a qualifying STEM field, they may apply for an additional 24 months, or a total of 36 months, of OPT work authorization, known as STEM OPT.
Students may apply for OPT and receive an employment authorization document (EAD) without first securing a job offer from a U.S. employer. However, to obtain an additional 24 months of STEM OPT, the international student must have a job offer and the prospective employer must participate in the U.S. government’s E-Verify program. In addition, the STEM OPT employer must assist the student in completing a training plan that explains how the employer will provide the student with work-based learning opportunities related to the student’s curriculum, evaluate his or her performance, and provide oversight and supervision. The training plan must then be reviewed by the student’s school before USCIS will issue a new employment authorization document to cover the additional 24-month STEM OPT period.
Anderson: How does the U.S. government define a “third-party” site and an “employer-employee relationship”?