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I-9 E-Verify Immigration Compliance

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  1. Placement of STEM OPT Workers in Third-Party Client/Customer Sites is Barred

    By: Bruce Buchanan Sebelist Buchanan Law



    In a below the radar move, the USCIS has updated its webpage for Science, Technology, Engineering, or Mathematics (STEM) Optional Practical Training (OPT) to reflect a ban on the placement of STEM OPT workers at third-party client/customer sites. In doing so, the USCIS is relying upon a March 11, 2016 final rule amending regulations to expand OPT for students with U.S. degrees in STEM. The rule included new provisions to obtain a 24-month STEM OPT extension including, each STEM OPT student must prepare and execute with their prospective employer a formal training plan that identifies learning objectives and a plan for achieving training objectives, and the employer must agree to announced and unannounced Department of Homeland Security (DHS)/Immigration & Customs Enforcement (ICE) site visits to employer locations where STEM OPT students are employed.

    Although the new rule does not prohibit placement of students at third-party worksites, the USCIS states the DHS/ICE site visit provision is the basis for the new prohibition. USCIS’s website states:
    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.

    The change in the website did not provide any explanation as to why DHS/ICE lacks the authority to conduct a site visit on the premises of a third-party client if that client site had been clearly listed on an approved Form I-983 training application. The Form I-983 training application sets forth that DHS may, at its discretion, conduct a site visit. It would be reasonable to conclude that by listing a third-party client site as the student’s work location on the I-983, that the worksite is open to a site visit by ICE.

    Why would the USCIS update its website with no prior notice and no opportunity for comment? Great question without an answer. Hopefully, DHS will provide an answer but don’t count on it. If they do, I will report in a future blog article.

    Updated 05-10-2018 at 09:29 AM by BBuchanan

  2. Judge Extends Stay of Invalidation of STEM for 3 Months

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A U.S. District Court Judge for the District of Columbia, who invalidated USCIS’s 17-month Optional Practical Training (OPT) extension rule for STEM recipients, but stayed the decision for six months, in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security, has granted the Department of Homeland Security’s (DHS) request for an additional 90 days of the stay.

    In the Judge’s initial decision, she found DHS did not have good cause to publish the OPT extension regulation in 2008 as an emergency rule; thus, it was not exempt from the notice and comment requirement. But, the Judge stayed her decision until February 12, 2016.

    One of the reasons that the Judge granted the additional 90 days for the stay was due to the unprecedented number of comments in response to the notice-and-comment rulemaking. Specifically, there were 50,500 comments filed. DHS argued that the invalidation of the 17-month STEM extension, because it could not properly evaluate the 50,500 comments, would create a hardship on participating workers and employers. The Judge agreed and thus extended the stay.
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