© Farhad Sethna, Attorney, 2018
USCIS and SEVIS / SEVP have set several traps for unsuspecting international students and overworked school officials and DSO’s: In postings revised August 17, 2018, USCIS and SEVIS/SEVP note the following, which DSO’s may or may not know to inform their students:
1. If you are on OPT – whether STEM or otherwise, you must:
a. report any changes to the employer’s name and address to your DSO within 10 business days (for example, if you change OPT employers or training location)
b. employers must report the termination of employment or the departure of the foreign student to the DSO within 5 business days.
Notice, the burden then falls on the DSO to report the incident by updating SEVIS and thus informing the SEVP.
2. If you have NOT used the STEM-OPT period (just the OPT period) for a prior degree, you can now use the STEM-OPT extension of 24 months even if your subsequent degree is NOT in a STEM field.
3. You can receive one 24-month STEM OPT extension for each STEM degree, so for example, one for a BS in Engineering, and another for a MS in engineering
4. Tight regulation of periods of Unemployment: During INITIAL OPT, a student may be unemployed for only 90 days total; for the extended period of the STEM-OPT, a student may be unemployed for only 60 days. So the maximum period of unemployment for a STEM-OPT student is 150 (90+60) days.
5. USCIS will automatically extend a student’s OPT extension while the timely filed STEM-OPT extension is pending.
6. Employment by third parties for placement with other employers at other locations: This is a dangerous area for the student: while the USCIS allows “staffing and temporary agencies and consulting firms” to employ STEM-OPT students, they may do so ONLY if (1) the hiring entity itself provides the practical training experience to the student and (2) has a bona-fide employer-employee relationship with the student.
Note that students may work at another worksite other than the employer’s principal place of business as long as the employment meets the above two points.
However, USCIS continues on to caution that “certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other similar relationships may not be able to demonstrate a bona fide employer-employee relationship and, therefore, may not meet the requirements of the STEM OPT extension.”
What does the above mean? It means, dear Student, that when applying for a job, be very careful that you are not hired and paid by a contractor or placement firm that will pay you through their own payroll while you work for someone else. The employer on your paystub must be the same employer who is giving you the Optional Practical Training and supervising that training.
7. Finally, even if the circumstances of your employment haven’t changed, please be sure to notify your DSO every 6 months of your ongoing training without change.
What’s the take-away from all this?
There are two: (1) be mindful of these and other requirements that USCIS imposes; and (2) be aware that you may be questioned about and even denied an immigration benefit (say a change of status to H-1b or Adjustment of Status) because you made one minor mistake in not reporting a change of employer or other SEVIS-required report. So the key is to remain aware and document all your communications, whether by email, online input into your school’s DSO’s system or directly into the SEVP website. Print out and save all your communications and updates to protect yourself at a later date if you need to.
With the administration’s anti-immigrant stance which is generally making it harder for non-US citizens to remain in the USA, it seems clear that the USCIS wants to use every excuse it can get to encourage individuals to leave the USA despite their potential to make enormous positive changes to the US in their respective area of their expertise.
Stay tuned! For more on this ever-changing issue and other general information on US immigration laws, please visit my blog, www.immigration-america.com
Copyright, Farhad Sethna, Attorney, 2018
About the author:
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.