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  • Article: IT Staffing Companies Can Meet the Requirements of the New STEM OPT Rules. By Matthew D. Minor, Esq.

    IT Staffing Companies Can Meet the Requirements of the New STEM OPT Rules

    by


    While any new process can appear daunting at first, the recently finalized regulations and form regarding the 24 month extension of STEM OPT for certain F-1 students clearly lay out what is expected of students, DSO’s and employers under the new rule and can be easily met by IT staffing companies. Recently, a popular H-1b informational site posted an opinion that IT staffing companies could not use the OPT STEM extension program.[1] We disagree.

    While there may be additional challenges for staffing companies to train workers placed at a third-party worksite, to say that this working arraignment does not qualify is incorrect. In fact, the instructions for Form I-983, regarding Section 5: Training Plan, Site Name and Site Address, specifically allow for a student’s practical training opportunity to take place anywhere other than the company’s headquarters location. There is nothing preventing an employer from placing a STEM OPT student at a Third-Party worksite. In order to comply with the requirements imposed by the new rules, a company must simply create a formal training program and provide assessments on an annual basis. There is nothing in the regulations that requires in person training. Remote training and communication is perfectly acceptable as long as it is properly described and documented. Describing how the employer will provide oversight and supervision of the STEM OPT student while at the third party site will be an important component of the training plan.

    IT staffing companies are required to prove the existence of an employer-employee as defined by a 2010 memo commonly referred to as the Neufeld memo.[2] Providing a training program for OPT employees who subsequently are petitioned for an H-1b visa, can be used favorably as a factor to demonstrate compliance with the Neufeld memo.

    At first glance, the reporting requirements may seem burdensome. However, DHS has provided a one page STEM OPT Reporting Requirements cheat sheet which breaks down who is responsible for which reporting activity and the timeframe in which that activity must take place.[3]

    A challenge to IT staffing companies may arise when a site visit is conducted however, with proper planning, this issue can also be addressed. DHS will provide notice to the employer at least 48 hours in advance of any site visit, unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. It will be important to let your client know that a site visit might be a possibility when you first place the STEM OPT student at their site. An important step to take in conjunction with this is to create a plan for when this does happen. When completing Section 5: Training Plan of Form I-983 the contact information should be for the appropriate individual in your organization who is familiar with and will evaluate the student’s goals and performance. This person does not need to be the student’s “mentor” but their knowledge of the student’s placement and training plan will allow them to answer DHS’s questions with minimal interruption to their work and inconvenience to your client.

    Another requirement of the OPT STEM rule is that the compensation paid to the STEM OPT student must be commensurate with that similarly situated U.S. workers. We are advising our clients to insure that they are paying at least a Level 1 OES wage[4] while the employee is an OPT STEM recipient. STEM OPT students and their employers are subject to the terms and conditions of the 24-month STEM OPT extension regulations, the Form I-983 instructions and the completed Form I-983, effective as of the employment start date requested for the associated STEM OPT period, as indicated on the Form I-983.

    While the addition of the training plan and reporting requirements are new necessities for OPT STEM recipients, the requirements of a training plan (J-1 or H-2b) and reporting requirements (H-1B) are not novel to the business immigration field. We are confident that our IT staffing clients will be able to easily comply with these new requirements. For assistance in creating a training and assessment plan, feel free to contact the author.



    [1] http://h1bsupport.com/blog/4155/new-issues-for-stem-opt-candidates-it-consulting-and-staffing-companies

    [2] Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placement, Memorandum of Donald Neufeld, Jan. 08, 2010 (HQ 70/6.2.8 AD 10-24).

    [3] https://studyinthestates.dhs.gov/sites/default/files/STEM%20OPT%20Reporting%20Requirements_FINAL.pdf

    [4] http://www.flcdatacenter.com

    Reprinted with permission.


    About The Author

    Matthew D. Matthew D. Minor, Esq. is an attorney with Hammond Law Group. His practice focuses on representing IT/engineering staffing companies. He also handles manufacturing and other cos. with multi-national offices. He handles H and L nonimmigrant visas and permanent residency cases.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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