CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?

Because of two recent USCIS interpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPT workers do not work at third-party worksites under their SETM OPT work authorization until the USCIS issues better and clearer guidance on the issue. 

Working and training at third-party worksites is probably legal.  However, by working at the third-party worksite the STEM OPT trainee puts himself at risk for enormous negative immigration consequences, including a ten-year bar from entering or living in the United States.

USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION

Earlier this year, and without any warning or notice, the USCIS changed its webpage to include this key change:

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.

The USCIS’ justification for the third-party worksite prohibition is, apparently, because ICE (Immigration Customs Enforcement) would lack the authority to investigate at the third-party worksite. 

Curiously, ICE has not produced any guidance on this point.  ICE likely would be surprised to learn that they do not have the authority to investigate a worksite where it believed immigration fraud was being committed.

The website change alone is probably not good law.  There has been no regulatory change.  There has been no notice and comment period, something required for regulatory change.  The “ICE lacks investigative authority” justification for the prohibition against third-party worksites is weak.

If the only thing that USCIS had done was updated their webpage, then MU Law’s position might be that STEM workers could continue to work at third-party worksites, provided that the other qualifications of the program were being met, however, this is not the only change for F-1 students.

F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAIN STATUS

A brand new USCIS policy, effective August 9, 2018, says that F-1 students including STEM OPTs will now accrue “unlawful presence” “the day after he or she engages in an unauthorized activity.”  Accordingly, after August 9, 2018, the USCIS is expected to find that STEM OPTs working at third-party worksites are engaging in “unauthorized activity” and are therefore “unlawfully present”.

Even worse, a USCIS official can retroactively find that an F-1 student engaged in “unauthorized activity”.  A number of leading university administrators have made this point directly to USCIS Director James Cissna.

This is a massive change in long-standing USCIS policy.  Under the prior interpretation, an F-1 student or OPT did not accrue unlawful presence until an immigration judge said so.  Engaging in “unauthorized activity” meant that an F-1 worker “failed to maintain status,” which is a lesser finding.

The distinction between “failing to maintain status” and “unlawful presence” is enormous:

• When someone fails to “maintain status” they must immediately leave the US but can ordinarily immediately reenter the US. 
• When someone is “unlawfully present” for more than 180 days, they must immediately leave the US and are barred from reentering the US for 3 years.  When someone is “unlawfully present” for more than 365 days, they must immediately leave the US and are barred from reentering the US for 10 years. 

Consider this hypothetical scenario:

August 9, 2018 – STEM OPT continues to work at a third-party worksite

April 1, 2019 – STEM OPT worker files an H-1B cap petition

May 1, 2019 – STEM OPT worker’s H-1B cap cases is selected in the H-1B lottery

August 10, 2019 – STEM OPT worker receives an RFE from USCIS asking for proof that he has only engaged in authorized activity.

September 20, 2019 -  H-1B is denied.  USCIS finds that STEM OPT worker’s third-party work was “unauthorized activity”.  USCIS also finds that the STEM OPT worker was “unlawfully present” from August 9, 2018 until September 20, 2019, a period of more than 365 days.  Consequently, the STEM OPT worker must immediately leave the US and cannot reenter the US for 10 years.

CONCLUSION

At this time, MU Law recommends that STEM OPT workers are not placed at third party worksites unless comprehensive analysis is done regarding the viability of the assignment.  STEM OPT workers at third party worksites run the risk of 3 and 10 year bars from reentry into the US.  It is our hope that USCIS provides greatly clarity on these points and engages the public on the issue, rather than creating law by fiat.