On August 17, 2018, USCIS updated its website to clarify obligations and reporting responsibilities for employees and employers participating in the F-1 STEM OPT program, including obligations related to training at third-party sites, staffing and temporary agencies. Significantly, USCIS clarified that training may take place at third party sites, if certain conditions are met and there is a bona fide employer-employee relationship. USCIS refers to the employer-employee relationship as defined in the regulations and regulatory comments published in 2016, when current STEM OPT rules became effective. The guidance confirms that the employer signing the training plan must also provide the training experience, and that 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.
It is important that employees and employers understand their obligations given increased penalties for non-compliance with F-1 OPT regulations effective August 9, 2018. For more information on increased penalties, see USCIS Policy Memo regarding Accrual of Unlawful Presence for F, J and M Nonimmigrants.
For specific legal advice, please contact immigration counsel.