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USCIS & ICE Update Standards for STEM OPT Employment at Third-Party Work Sites

Posted April 20, 2018Matthew MeltzerArticles

On April 19th, USCIS updated its web page on STEM OPT work authorization to revise the language on employer training obligations. The update page specifically states that employment at third-party client sites will no longer be allowed under STEM OPT.

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. For instance, a student might possibly receive STEM-related training while working in such an entity’s information technology (IT) department.

Such entities may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. As noted above, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. Moreover, the student’s practical training experience must be provided by the employer’s own trained or supervisory personnel at the employer’s own place of business or worksite(s), to which ICE has authority to conduct employer site visits to ensure that the employer is meeting program requirements.

USCIS justified this policy as follows:

While employers may rely on their otherwise 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).

Moreover, 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 employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the 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. 

For the same reason, online or distance learning arrangements may not be used to fulfill the employer’s training obligation to the student. For instance, the employer may not fulfill its training obligation to provide a structured and guided work-based learning experience by having the student make periodic visits to the employer’s place of business to receive training, while the student is actually working at the place of business or worksite of a client or customer of the employer. Similarly, the employer may not fulfill its training obligation by having the student make periodic telephone calls or send periodic email messages to the employer to describe and discuss their experiences at the place of business or worksite of a client or customer of the employer. See 8 C.F.R. 214.2.(f)(10)(ii)(C)(11) and 2016 STEM OPT Final Rule (p. 13041, 13042, 13049, 13062, 13064-66, 13070, 13071, 13090, 13113).

Going forward it is incredibly unlikely any employee seeking F-1 STEM OPT authorization will be granted approval by a school if the employee will be working directly at a client site. 

This action by the USCIS is ripe for a federal court challenge, as there is an argument that this policy change cannot be made through an update to the USCIS website.

Here are our recommendations for employers:

Employees already employed in STEM OPT at third-party work sites

These employees will likely continue to have work authorization. It is not clear that ICE or USCIS will look to retract work authorization for employees who already have approved EAD cards based on submitted I-983 forms. However, we will continue to monitor this situation.

Employees employed on regular OPT at third-party work sites

Employers should be ready to move employees in house or terminate employment at the end of the regular OPT period. These employees are unlikely to get STEM OPT approval for continued work authorization at a client site.

Prospective employees

We strongly discourage employers from seeking to hire STEM OPT employees to work at client sites.

Please note that this policy does not impact whether employers can sponsor employees for H-1B status in similar arrangements.

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USCIS Completes FY 2019 H-1B Cap Lottery

Posted April 16, 2018Kristen KellarArticles, H-1B

On April 12, 2018, USCIS announced that it had completed its computer-generated random selection process for H-1B cap cases. USCIS received 190,098 H-1B petitions during the April 2 to April 6 filing period, and as a result, conducted the lottery to select the congressionally-mandated 65,000 cap petitions and additional 20,000 master's cap cases. USCIS received 94,213 petitions for the regular cap and 95,885 for the master's cap. The total number of petitions submitted was a slight decrease from the 199,000 petitions received last year.

Over the coming weeks USCIS will complete data entry for all selected cap cases and issue receipt notices. H-1B petitions that were not selected in the lottery will be returned along with the filing fees.

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USCIS to Destroy Returned EAD's and Green Cards After 60 Days

Posted April 8, 2018Matthew MeltzerArticles, Green Card

USCIS will destroy Permanent Resident Cards, Employment Authorization Cards and Travel Documents returned as undeliverable by the U.S. Postal Service after 60 business days if USCIS is not contacted by the document’s intended recipient to provide the correct address.

Applicants for EAD's and Green Cards must report a change of address within 10 days of relocation using the procedures outlined at   

For questions about moving while an EAD or Green Card is under review please contact your Meltzer Hellrung attorney.

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Department of State May Now Request Social Media User History for Visa Applicants

Posted April 5, 2018Matthew MeltzerArticles

The Department of State may now request supplemental information from visa applicants who are considered potential threats to the United States. Identified applicants will need to complete form DS-5535The DOS Visa Office has confirmed that there are no set criteria, such as national origin, military training, criminal history, etc., that would require completion of the form. As has always been the case, the consular officer will determine whether additional information is required as a result of information learned during the course of the interview.

The DS-5535 includes questions:

  • Travel history for the last 15 years
  • Other passports
  • Siblings
  • Children
  • Spouses
  • Residential history
  • Phone number and email address history
  • Social media user name history for the last five years
  • Employment history for the last 15 years

The American Immigration Lawyers Association has received reports of applicants being told that the DS-5535 must be completed during the interview and submitted at the window before the applicant leaves the post. The Visa Office has confirmed that this should not be the case. As the form requests information going back 15 years, it is not generally feasible to ask applicants to complete it on the spot. Therefore, applicants who are required to complete a DS-5535 may have their applications refused under INA §221(g) and submit the form at a later time. The Visa Office agreed to remind posts of this procedure so that applicants are afforded an opportunity to ensure the information provided on the DS-5535 is complete and accurate.

For individuals from certain countries it may be a best practice to complete a DS-5535 in advance of a visa appointment. The Department of State estimates 0.5% of visa applicants, or about 65,000 people, will be subject to filling out this form.

The Department of State published a notice in the federal register that may make all visa applicants subject to this request. The department estimates it would affect 710,000 immigrant visa applicants and 14 million non-immigrant visa applicants, including those who want to come to the U.S. for business or education, according to the documents.

The documents were posted on the Federal Register’s website on March 29, 2018.

If the requirements are approved by the Office of Management and Budget, applications for all visa types would list a number of social media platforms and require the applicant to provide any account names they may have had on them over the previous five years. It would also give the applicant the option to volunteer information about social media accounts on platforms not listed in the application.

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USCIS and CBP Implement Pilot Program for L-1 Canadians at Blaine, WA POE

Posted April 5, 2018Matthew MeltzerArticles

From April 30, 2018, to Oct. 31, 2018, the USCIS California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) Blaine, Washington, port of entry (POE) will implement a joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA). This pilot is designed to facilitate the adjudication and admission process of Canadians traveling to the U.S. as L-1 nonimmigrants.

DHS regulations permit an employer to file an L petition on behalf of a Canadian citizen in conjunction with the Canadian citizen’s application for admission to the United States. Petitioners choosing to participate in the joint agency pilot program will be asked to:

  • Submit Form I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the CSC before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine POE; and
  • Use a cover sheet annotated with “Canadian L” to ensure quick identification of the Form I-129 and for any correspondence thereafter, such as a response to a request for evidence (RFE).

A petitioner who chooses not to participate in the Pilot Program may continue to file its L-1 petition on behalf of a Canadian citizen with CBP at the Blaine POE. In such a case, CBP will accept the petition but will adjudicate it at the next Class A POE.

About the Pilot Program

For those who choose to participate in the pilot program, USCIS will receive fees, issue a Form I-797C receipt notice, and adjudicate the Form I-129. If USCIS needs additional evidence, USCIS will send a request for evidence (RFE) to the petitioner.

CBP will continue to make the final determination on whether a Canadian L-1 applicant is admissible to the United States. Applicants participating in the pilot and seeking an immediate determination of admissibility must bring a copy of the petition approval notice for the Form I-129 when seeking admission to the United States at the Blaine POE.

If the petitioner chooses to send the applicant to the Blaine POE before USCIS makes a decision on the Form I-129, there may be delays while USCIS remotely adjudicates the form. In such a case, the applicant must bring a copy of the petition receipt notice for the Form I-129 and await adjudication of the Form I-129.

If a petitioner chooses not to file the Form I-129 in advance with USCIS, the filing may continue to be made with CBP at the Blaine POE, but CBP will adjudicate it during the pilot at the nearest Class A POE. The beneficiary may apply for admission at any designated Class A CBP POE optimized for processing L-1 petitions for Canadian citizen beneficiaries. Accordingly, petitioners can still choose to have CBP adjudicate their petitions at the time an applicant appears at any CBP-designated Class A POE or pre-clearance airport (PC). The three optimized stations nearest to Blaine are Class A POEs Point Roberts, Washington, and Sumas, Washington, and the Vancouver, Washington, PC.

Meltzer Hellrung LLC will continue to monitor the pilot program and whether it is implemented at other ports of entry. USCIS indicated that the program could be implemented across the northern U.S. ports of entry, and may also be extended to other immigration categories, such as the TN.

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