Mumbai: The United States Citizenship and Immigration Services (USCIS) has reversed its earlier stand that international STEM students undergoing optional practical training (OPT) cannot be placed at customer work sites. The USCIS made changes on its website on Friday removing these restrictions, but reiterated that employers need to meet their training obligations. In addition, in keeping with the STEM-OPT Regulations of 2016, USCIS continues to frown on arrangements that “provide labour for hire” and those where a bona fide employer-employee relationship cannot be demonstrated.
Both the requirements of meeting training obligation and existence of a bona fide employer-employee relationship have always been an integral part of the STEM-OPT programme. International students are eligible for a 12-month OPT under which they can work in the US. Those who have completed their degrees in science, technology, engineering and mathematics (STEM) are eligible for applying for a further OPT extension of 24 months. Open Doors Survey (2017) indicates that there are around 1,90,000 Indian students in the US, with STEM courses being the top draws.
The immigration agency’s earlier stand on prohibition of third-party placement (at customer worksites) was displayed by it on its website (rather than introduced by way of a formal change in regulations). This shift in stand, which came to light in April, meant that training of STEM students under the OPT could be carried out only inhouse at the employer’s own worksites. It dented work opportunities for international STEM students, as IT service or consulting companies, or staffing firms which typically placed these students with teams operating at customer worksites, could no longer hire them.
Cyrus Mehta, New York-based immigration attorney and founding partner of a law firm, said: “The USCIS appears to have reversed its prior guidance by not categorically barring offsite placement of STEM-OPT students. Such students may engage in training that takes place at customer sites as long as the training obligations are met, and the employer maintains a bona fide employer-employee relationship. In addition, the training must be provided by the employer rather than a customer.”
ITServe Alliance, one of the largest associations in the US, comprising IT services, staffing and consulting companies, had filed a lawsuit against the prohibition. USCIS on its website states that to establish a bona fide relationship, the employer must not be the student’s employer ‘in name only” nor can the student work for the employer on a ‘volunteer basis”. Therefore, a danger still lurks for students if USCIS determines that an employer-employee relationship was not maintained. This can result in the student being debarred from US re-entry for several years, sums up Mehta.
