With the coming of the new rules on STEM Optional Practical Training (OPT), many students and employers are wondering whether they should actually hire students on OPT or not. This article covers some specific situations as they relate to employers especially consulting companies. The article includes but is not limited to their business model and whether they might encounter issues regarding hiring OPT work permit holders. Note that this article does not cover every single issues related to the OPT but it only tries to give a perspective on the OPT employment. First of all we have to distinguish between the types of OPTs.
Regular OPT of 12 months
For those on regular 12 months OPTs, the rules have not changed, therefore as long as the OPT holder is working in his or her field of study, employers especially consulting companies should not have issues related to hiring OPT students. The main requirement is how the planned employment is related to the student major course of study. The employer just needs to make sure the student is compliant with all the other rules of OPT including reporting to the school designated official (DSO). As you will notice further in this article, it might be easier for a consulting agency to hire the 12 months OPT student or even an H1B visa holder rather than a new 24 months OPT holder.
New STEM OPT 24 Months rule
While the 12 months OPT seems to be straight forward for both the students and the employers, the new 24 months rule has few elements which might actually become problematical as it relates to employers especially consulting agencies. One of the requirements to get the STEM OPT, is the form I-983. Unfortunately the attestation attached to this form is quite strict.
Issues with preparing, signing and complying with form I-983.
1. Making Sure no temporary or permanent workers are displaced by the STEM OPT holder
Section 4 Employer Certification signature part of form I-983 states “The Employer Official with Signatory Authority, who is an appropriate individual in the employer’s organization, who is familiar with the student’s goals and performance, and who is an employee who has signatory authority for the employer should review the certification and affirm the statement by signature.” The one signing will have to attest that: “The Employer Official with Signatory Authority attestation includes the certification at Section 4 (d) which states “The student on a STEM OPT extension will not replace a full‐ or part‐time, temporary or permanent U.S. worker. The terms and conditions of the STEM practical training opportunity—including duties, hours, and compensation—are commensurate with the terms and conditions applicable to the employer’s similarly situated U.S. workers or, if the employer does not employ and has not recently employed more than two similarly situated U.S. workers in the area of employment, the terms and conditions of other similarly situated U.S. workers in the area of employment.”
The terms above not only means that the employer has not displaced any US workers but not even non-immigrant temporary workers such as H1B visas, L1 visa holders, or permanent residents. A violation of this clause will be severely punished. Therefore consulting agencies will have to make sure that they are not wrongly firing or hiring in the company to replace people by STEM OPT holders. Moreover, just like the labor condition application (LCA) under an H1B application needs to calculate the wages to be paid, the STEM OPT student will have to be paid the prevailing wage as per market conditions although at this point no LCA is to be filed.
2. Adhering strictly to the Training Plan for STEM OPT Students
Section 5 of the form I-983 states: “In order to better ensure the academic benefit and integrity of the extension, Federal regulations require each STEM OPT student to prepare and execute with his or her prospective employer a formal training plan that identifies learning objectives and a plan for achieving those objectives. The STEM OPT student and his or her employer must work together to finalize the plan.”
Since consulting agencies are actually going to place the STEM OPT student at a third party location, they need to actually write a good plan how they will actually ‘train the students…in achieving their goals’ This will mean constant monitoring which is probably worse than the Neufeld 2010 of employer-employee relationship where no constant monitoring is required. The consulting company will have to have someone who will actually supervise and control the student’s work on a daily basis. This implies higher cost and difficulties.
3. Work Site
The new requires that the employer attest where the STEM OPT holder will be posted: “if the student is working for a branch or subsidiary of a large entity, or anywhere other than the headquarters, provide the name of this work site…the exact address of the work site where the STEM practical training will take place.”Note that the government has already mentioned that employer will be subject to site visits to confirm. The employer better make sure they are fully compliant.
4. Naming the person in charge of monitoring the student work.
The employer in our case the consulting company will have to “enter the name of the appropriate individual in the employer’s organization who is familiar with, and will monitor, the student’s goals and performance. This may or may not be the same Employer Official as in Section 4.” This means that monitoring individual will have to be posted at the site where the OPT holder will be working. One solution would be to designate a person on the ‘end client’ to be the supervisor, this means that the end-client will have to bear additional costs and burden which is quite a discouragement to hire a STEM OPT student.
5. Student Role and the Training Program’s Direct Relationship to the Student’s Qualifying STEM Degree.
The consulting agency will have to “describe what tasks and assignments the student will carry out during the training and how these relate to the student’s STEM degree. The plan must cover a specific span of time, and detail specific goals and objectives.” This can actually be explained at the outset. But will require some good explanations.
6. Goals and Objectives
The consulting agency or employer will have to ” describe the specific skills, knowledge, and techniques the student will learn or apply; how the student will achieve the goals set out for his or her training; and the training curriculum including the timeline.” This is almost like doing a supporting letter for an H1B visa case and employers who think they can get away from this requirement are just going to fool themselves.
7. Employer Oversight
Last but not least the employer and in this case the consulting company will have to: “explain how the employer provides oversight and supervision of individuals filling positions such as that being filled by the named F‐1 student. If the employer has a training program or related policy in place that controls such oversight and supervision, a description of this program or policy may suffice to answer the question”
This is very close to the requirement of employer-employee relationship issues we are actually facing in the H1B cases. Small consulting companies might never be able to bear such a cost. This is another part of this new rule that might actually deter the consulting companies from hiring any STEM OPT student.
The new STEM OPT rule is welcomed by many, however, the requirements and the application of the same can actually be a challenge for consulting agency employers which usually are placement companies. The preparation to actually employ a STEM OPT student and maintaining the rule requirements will not only need an analysis very similar to the current H1B cases but a full application “package” to be submitted. In addition, the records and monitoring of the students will mean that the consulting company will have to bear additional costs. The employer will also have to make sure that the neither the student nor the end-client will actually violate any of the above mentioned requirements. The situations of UNNJ and recent H1B visa fraud cases have taught us few things including the fact that attesting on any paperwork as it relates to the government means strict scrutiny. Any violations will be severely punished.
However, just because the rules that are being set are harsh, it does not mean that it is impossible to comply. In fact, good companies which can understand the system and can have good lawyers helping, will actually not be affected. As such consulting companies should actually be ready to work through this new maze of the 24 months STEM OPT. In turn, it will require legal minds familiar with the immigration system as well as the new STEM OPT rules to support them.
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