Third Party Site Placements for F-1 STEM OPT Extensions

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On 17 August 2018, DHS purported to "clarify" that subject to certain conditions, placement of students engaging in two-year extension of their practical training (STEM OPT extension) at third-party sites may be acceptable if appropriate conditions are met.

A careful review of these appropriate conditions leads to the inescapable conclusion that very little has really changed.

The USCIS in promulgating the regulations in 2016 had indicated that placement at third-party sites would most likely not be acceptable. That appears still to be the case because all of the following conditions that allow third-party site placements would require the employer to be actually in control of the placement site or location:

1. A bona fide employer – employee relationship with the student must exist. The USCIS has often placed great emphasis on day-to-day control of an employee's work as being one of the prime indicators of employer – employee relationship. If a consulting company places an employee at a third-party location, that control would likely cease to exist.

2. The entity that provides the practical training must be the same entity that employs the student. Thus, placement at an end client site would not satisfy this requirement.

3. The paperwork to be submitted to obtain government permissions clearly requires the employer of the student to plan, monitor and document the training on an ongoing basis. Placement at a client site would not normally permit that degree of control over the training.

4. The wording of the USCIS email release seems to suggest that the USCIS is creating an exception for those situations where an employer is placing a student to work at one of its own satellite offices or sites. The release notes that "STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business."

The most daunting part of the USCIS requirements is that the employer undertakes all the above obligations under penalty of perjury. That is a serious matter indeed. Any deliberate falsehood could expose an employer to a felony prosecution for perjury.

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