STEM OPT Employer Requirements and Responsibilities

Published: 08/17/2018

Source: http://bit.ly/2MZE1qs

If you are an employer who wants to provide a practical training opportunity to a STEM OPT student during their extension, you must:

OPT/CPT Blast Resume to 1000+ employers
  • Be enrolled in E-Verify, as evidenced by either a valid E-Verify Company Identification number or, if the employer is using an employer agent to create its E-Verify cases, a valid E-Verify Client Company Identification number.
  • Remain a participant in good standing with E-Verify, as determined by USCIS.
  • Have a valid Employer Identification Number (EIN) issued by the Internal Revenue Service for tax purposes.
  • Report material changes of the STEM OPT student’s employment by submitting a modified Form I-983 to the DSO at the earliest available opportunity.
  • Report the STEM OPT student’s termination of employment or departure to the DSO within 5 business days.
  • Implement a formal training program to augment the student’s academic learning through practical experience.
  • Provide an OPT opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours, and compensation.
Terms and Conditions for Employer Participation

To ensure the integrity of the program and provide safeguards for U.S. workers, any employer wishing to employ 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

As noted above, 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. See 2016 STEM OPT Final Rule (pp. 13072, 13079).

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. See 8 C.F.R. 214.2(f)(10)(ii)(C)(10) and 2016 STEM OPT Final Rule (pp. 13041, 13042, 13065, 13079, 13080-81, 13119).

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). See 8 C.F.R. 214.2(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).

As noted above, 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. See 8 C.F.R. 214.2(f)(10)(ii)(C)(11).  Consistent with this provision, during a site visit, DHS may verify that the employer that signs the Form I-983 is the same entity that provides the practical training experience to the student and ensure compliance with the 2016 STEM OPT Final Rule.  For ICE to effectively conduct these site visits as part of its oversight responsibilities, it is important that employers report any change in a student’s employment address.  As indicated above, the employer and student must report such a material change by submitting a modified Form I-983 to the DSO at the earliest available opportunity.

The Employer’s Training Obligation: Staffing and Temporary Agencies

Staffing and temporary agencies and consulting firms may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student and they have and maintain a bona fide employer-employee relationship with the student. 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.  As noted in the 2016 STEM OPT rule, 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 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. See 2016 STEM OPT Final Rule (p. 13079).    

As part of the STEM OPT extension, employers must complete the appropriate parts of Form I-983, Training Plan for STEM OPT Students. In this form, employers attest that:
  • They have enough resources and trained personnel available to appropriately train the student;
  • The student will not replace a full- or part-time, temporary or permanent U.S. worker; and
  • Working for them will help the student attain their training objectives.
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.

Source: http://bit.ly/2MZE1qs

Get news alerts to your inbox

Disclaimer: http://bit.ly/163AglR

Latest Articles

View All News