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Foreign Grad Training Again Allowed at Third-Party Sites

Aug. 20, 2018, 7:53 PM

Information technology staffing companies are no longer locked out of a training program that’s widely viewed as a launch pad for H-1B skilled guestworker visas.

International students participating in the optional practical training (OPT) program for science, technology, engineering, and mathematics graduates can work at third-party sites, U.S. Citizenship and Immigration Services said Aug. 17 in a reversal of course. They must prove, however, that there’s a “bona fide employer-employee relationship” between the STEM OPT student and the company, the agency said.

The agency earlier this year said STEM OPT participants weren’t allowed to work at third-party client sites and instead had to work at their employers’ offices. That move effectively blocked staffing companies from the program and made it more difficult for them to sponsor workers for H-1B visas.

The STEM OPT program, outlined in 2016 Obama administration regulations, allows foreign graduates of U.S. colleges and universities with STEM degrees to work in the U.S. for up to 36 months post-graduation while maintaining their student visas.

Many employers use the STEM OPT program to hire workers straight out of school and continue employing them while trying their hand in the H-1B lottery over multiple years.

A representative for the USCIS didn’t respond to Bloomberg Law’s request for comment.

Quiet Change

The decision to block third-party placement of STEM OPT students was made quietly via a website change that many stakeholders didn’t notice until about three months later. It prompted a lawsuit by the ITSERVE Alliance, a trade association of IT staffing companies.

That lawsuit is still very much alive despite the agency’s reversal, attorney Jonathan Wasden told Bloomberg Law Aug. 20. That’s because the USCIS is continuing to insist that STEM OPT employers prove a “bona fide employer-employee relationship,” which could be interpreted to block third-party placements, said Wasden, who’s representing the ITSERVE Alliance.

The USCIS essentially is trying to apply the standard for H-1B visas to the STEM OPT program without providing notice and the opportunity for public comment, he said.

Wasden also said he wants to get a federal judge to declare that the prior website change was illegal.

Attorney: Timing ‘Curious’

The timing of the reversal is “curious,” Wasden said.

The USCIS made the announcement Aug. 17, two days before filing its response to ITSERVE’s request for a court order against banning third-party placements, he said. The response—citing the agency’s website as of Aug. 19—says there’s nothing to indicate that third-party placement is prohibited.

The USCIS also “did not intend the prior language to be read as disallowing remote work, and the revised language on the website makes clear that STEM OPT students may work remotely or at client work sites so long as all the training obligations are met,” the agency said.

“Staffing and temporary agencies 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 at its own place of business and they have a bona fide employer-employee relationship with the student,” the website stated previously. The training “must be provided by the employer’s own trained or supervisory personnel at the employer’s own place of business or worksite(s),” it said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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