The 2016 STEM regulations made it more difficult for staffing agencies and consulting companies to sponsor graduating F-1 OPT employees for the two-year STEM OPT extension. According to the regulations, the training plan must be signed by the entity that has a bona fide employment relationship with the student and the bona fide employer must be in a position to train the student and oversee the implementation of the training plan. It was noted that STEM OPT may not be “apt for certain types of arrangements, including . . . employment through ‘temp’ agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship.”

Now, without highlighting or announcing a change, USCIS on its STEM website has clarified its position on qualifying bona fide employment relationships. It notes that the training experience “must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct site visits to ensure the employer is meeting program requirements.” It continues, “[T]he training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” The guidance also notes that “periodic telephone calls or . . . periodic email messages sent to the employer to describe and discuss their experiences at the place of business or worksite of a client or customer of the employer” would not fulfill the direct training obligation.

These clarifications do not mean that it would not be possible to have a STEM employee working at a third-party worksite. There might be situations where a bona fide employer-employee relationship could still be established if, for instance, a supervisor is co-located at the client site and actively supervising the STEM employee or if the third-party placement is only occasional.

It is unclear whether simple publication on the USCIS website of new guidance has the force of law or whether this new guidance will lead DSOs to reconsider already approved training plans. Further, whether this new policy will lead to particular scrutiny of Cap-H-1B cases filed for STEM OPT students who are working at third-party locations is unclear.

What seems clear is that this is another step taken by USCIS to comply with President Donald Trump’s Buy American, Hire American Executive Order focused on protecting U.S. workers.