Adhikari Law PLLC, Washington, DC, August 17, 2018. USCIS has said it is going to update the Optional Practical Training Extension for STEM Students (STEM OPT) page of their website to clarify the reporting responsibilities for participating in the STEM OPT program. STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. USCIS further maintains that the certain types of arrangements, including multiple employer arrangements, sole proprietorship, employment through ‘‘temp’’ agencies, employment through consulting firm arrangements that provide labor for hire, and other similar relationships may not be able to demonstrate a bona fide employer-employee relationship and, therefore, may not meet the requirements of the STEM OPT extension.
Furthermore, Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days. Students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days. Department of Homeland Security (DHS) requires prompt reporting to ensure that it is able to exercise effective oversight of the program. Additionally, USCIS is clarifying that
Earlier USCIS had taken the position that STEM employment may not assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. It had maintained that employer who signs the Form I-983 must be the same entity that provides the practical training experience to the student. It had taken the position that the student’s practical training experience must be provided by the employer’s own trained or supervisory personnel at the employer’s own place of business or worksite(s), to which ICE has authority to conduct employer site visits to ensure that the employer is meeting program requirements.
With the changed policy, the STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student.
Any employer who employs a student participating in the STEM OPT extension program must ensure that:
- The employer will have and maintain a bona fide employer-employee relationship with the student.
- The employer has sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity at the location(s) specified in the Form I-983, Training Plan for STEM OPT Students.
- The STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker.
- The training opportunity will assist the student in attaining his or her training goals.
DHS may, at its discretion, conduct a site visit of the employer to ensure that program requirements are being met, including that the employer possesses and maintains the ability, personnel, and resources to provide structured and guided work-based learning experiences consistent with the Training Plan.
The Employer’s Training Obligation
To be eligible to employ a STEM OPT student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students. To establish a bona fide relationship, the employer may not be the student’s “employer” in name only, nor may the student work for the employer on a “volunteer” basis. Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student.
An employer must have sufficient resources and trained or supervisory personnel available to provide appropriate training in connection with the specified training opportunity at the location(s) where the student’s practical training experience will take place, as specified in the Form I-983. The “personnel” who may provide and supervise the training experience may be either employees of the employer, or contractors who the employer has directly retained to provide services to the employer; they may not, however, be employees or contractors of the employer’s clients or customers. Additionally, under no circumstances would another F-1 student with OPT or a STEM OPT extension (who is undergoing training in their own right) be qualified to train another F-1 student with a STEM OPT extension.
While employers may rely on their existing training programs or policies to satisfy the requirements relating to performance evaluation and oversight and supervision, the student’s Training Plan must nevertheless be customized for the individual student. For instance, every Training Plan must describe the direct relationship between the STEM OPT opportunity and the student’s qualifying STEM degree, as well as the relationship between the STEM OPT opportunity and the student’s goals and objectives for work-based learning. Moreover, a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).
DHS, at its discretion, may conduct a site visit of any STEM OPT employer to ensure that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with the Form I-983. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.
How to show a bona fide employer-employee relationship?
Generally, a bona fide employer-employee relationship means the employee is a direct employee of the Employer at all times regardless of the client location or the project the employee is assigned. Following are some of the ways one can maintain a valid employer-employee relationship:
- Has the sole and exclusive authority to hire, pay, fire, supervise or otherwise control the work of employee.
- Tax Treatment is such that the employer pays as well as deducts/withholds all applicable taxes (i.e. the employee is a W-2 employee)
- Pays salary
- Has the right to control over terms and conditions of employment.
- Administers Employment Term & Conditions.
- Conducts supervision and performance review.
- Provides all tools and instrumentality for the job.
- Designs project and work schedules and activities to be performed.
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Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.