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New Issues for STEM OPT Candidates, IT Consulting and Staffing Companies

78,705 views 46 comments
posted May 7, 2016 in F1/OPT/CPT by dan (23,552 points)

THE FORM I-983 LOOKS VERY COMPLICATED AND EMPLOYERS/STEM EMPLOYEES MUST BE VERY CAREFUL WITH THEIR INTENTIONS, ANY MIS-REPRESENTATION OR FRAUD MAY LEAD TO SEVERE PENALTIES. Read More Below.

Please comment with your thoughts so we engage in a discussion on this Topic!

The new STEM Regulations effective May 10, 2016 will have a serious impact for OPT Students who plan to extend their OPT. The rule may create  serious problems for OPTs employed with I.T.Consulting and Staffing Firms as the new Rule requires that an Employer-Employee Relationship to be established and the OPT is a direct Employee of the Employer and NOT provide services at a Third-Party Client sites as in a Regular Consulting Arrangement.

There must be an employer-employee relationship between the employer and the F-1 student. During the STEM OPT period, employment for a staffing agency and other labor-for-hire arrangement will not qualify.

I request readers to note that OPT STEM candidates may not even engage in a business activity or Volunteer Employment during the STEM Period

Volunteer employment does not qualify.

Another problem for Employers is to require submission of a plan and attest the Form I-983, which comes with several obligations. If STEM Employees/Employers do not comply with the Regulations, it is possible that they may face serious consequences. The form needs to be signed/attested by the Employer, DSO, and the Employee/Student in Question.

The DHS or ICE (Immigration and Customs Enforcement) may, at its discretion, conduct a site visit of the employer to ensure that program requirements are being met, including that the  employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent
with this Plan.

The 2016 final rule that reinstates the 24-month STEM OPT regulations increases the educational benefits that F-1 students receive from their practical training experiences by requiring the submission of a formal training plan.

The formal training plan must clearly articulate the STEM OPT student’s learning objectives and affirm the employer’s commitment to helping the student achieve those objectives. To fulfill this requirement, a student and their employer must complete and sign Form I-983 and submit it to the student’s DSO.

STEM OPT students and their employers are subject to the terms and conditions of the 24-month STEM OPT extension regulations, the Form I-983 instructions and the completed Form I-983, effective as of the employment start date requested for the associated STEM OPT period, as indicated on the Form I-983.

STEM OPT students may participate in entrepreneurial ventures where the student is an employee. However, they may not act as their own employer or as the signatory for the employer for the purposes of the form.

A substantially revised STEM optional practical training (OPT) program will take effect on May 10, 2016. The new program expands OPT to 36 months for F-1 students with a qualifying U.S. STEM degree – 12 months of initial OPT plus a 24-month extension of OPT – but imposes significant new obligations on students, employers, and schools. The new requirements will apply only to those working in or seeking a grant of STEM OPT under the new regulations. The standard 12-month OPT program will remain unchanged. F-1 students granted a 17-month STEM OPT extension before May 10, 2016 will remain subject to the prior STEM rules unless they file for an additional seven months of OPT under the new rules.

Under the new regulations, F-1 students with a qualifying STEM degree can hold OPT work authorization for up to 36 months – 12 months of initial OPT and 24 months of STEM OPT. Some F-1 students who already have a 17-month STEM OPT will be eligible to apply for an additional seven months.

During an F-1’s STEM OPT period, employers will be subject to increased obligations, including:

  • Completing a training plan for each F-1 on a STEM extension, and updating the plan if there are changes to the F-1’s training program;
  • Conducting regular evaluations of the F-1 through the STEM extension period and submitting evaluations to the student’s designated school official (DSO);
  • Making required reports to the F-1’s DSO;
  • Ensuring that the F-1’s compensation and other working conditions are commensurate with those of similarly situated U.S. employees;
  • Attesting that the employer will not replace a U.S. worker with an F-1 on STEM OPT and
  • Undergoing compliance inspections conducted by U.S. Immigration and Customs Enforcement (ICE)

These obligations will apply only to employers of F-1s working on a STEM OPT approved under the new regulations. They do not apply during the F-1’s initial 12 months of regular OPT or during a 17-month STEM OPT that was approved beforeMay 10, 2016 and will not be further extended under the new regulation.    

What types of employment are permissible during the STEM OPT period?

The 24-month STEM OPT period is limited to certain employers and employment opportunities, as follows:

  • As noted above, a STEM OPT employer must be enrolled in and using the E-Verify program at the STEM OPT worksite.
  • A STEM OPT employer must have an Employment Identification Number (EIN).
  • The employment opportunity must be directly related to the student’s qualifying STEM degree.
  • There must be an employer-employee relationship between the employer and the F-1 student. During the STEM OPT period, employment for a staffing agency and other labor-for-hire arrangement will not qualify.
  • Volunteer employment does not qualify.
  • An F-1 may not work concurrently for multiple employers during the STEM OPT period.

What do you think? Do you think this makes life miserable for OPT Students and IT Consulting Businesses? 

PLEASE COMMENT WITH YOUR OPINIONS, THOUGHTS, SUGGESTIONS!

46 Comments

commented May 7, 2016 by dan (23,552 points)
A similar Employer-Employee Relationship Regulation was implemented in 2010 under the NEUFELD Memo for H1B Visas. There is a relaxation if there is a letter from the End Client is they state the actual employer will control the employment. It is unknown at this point if they treat it same way!
replied May 7, 2016 by Shashwat
I can fill Section 5 in I 983 form on my own which states about objectives of training and get it signed by my team leader. Right ?    Or it has to be filled by my employer only ?
replied May 7, 2016 by dan (23,552 points)
Yes, you can fill and get it signed.
replied May 7, 2016 by Shashwat
Thanks.Dan
Should i go for H1B cap gap or STEM OPT extension ?
replied May 7, 2016 by dan (23,552 points)
H1B is the best deal with these issues.
replied May 8, 2016 by Shashwat
Hi Dan

My H1B already got picked in lottery this year

Now should i go for H1B CAP GAP or STEM OPT expension till october ?
replied May 13, 2016 by Hari

For people who argue that Form I-983 is similar issue as H1-B memo 2010 :

Read section Under " Valid employee-Employer relationship would exist in the following scenarios" -> "Long term Placement at Third party work site"

https://www.uscis.gov/…/H1B%20Employer-Employee%20Memo01081…

FYI Form I983 is not from USCIS or DHS ... Its from ICE.. Do research who they are ? and what they do?
https://www.ice.gov/…/fil…/documents/Document/2016/I-983.pdf

replied May 13, 2016 by dan (23,552 points)
Its not the same as H1B neufeld memo, regulations are different for the employer-employee relationship
replied May 13, 2016 by Hari
Yah I know. But people who fall under this Consulting firms dont understand severity of this new rule... lol...

Get ready to pack luggage if they cant find FULLTIME job....
replied May 13, 2016 by dan (23,552 points)
This looks more serious than anticipated.
replied May 18, 2016 by ravi kiran c vadla
there is no way in hell, consultancy will sign the I983 forms. this is death nail for OPT students working through consultancies while applying for 24 month STEM..only option left is to rejoin the university for PHD or other masters course...we are all ******* man...
commented May 7, 2016 by OPT Trouble

This would be a big disconnect for OPTs and IT Consultancies...After 12 Months of OPT without a full time job, you just go home. I guess after 12 Months of OPT at least OPTs will learn to apply for a job with real 1 year experience....surprise

And IT Consultancies who depend on OPTS who load tons of money will be on streets?

replied May 7, 2016 by dan (23,552 points)
I expect that the DHS will post on FAQs soon on what type of employment is allowed or prohibited. The same thing happened with the H1B Employer-Employee Relationship Memo..
replied May 7, 2016 by good
I don't think so. This is the BEGINING of the END and it's a good lesson to GREEDY OPTs and Consultancies!
replied May 13, 2016 by HypocriteUSA
So OPTs are greedy? My foot. I smell a disgruntled and incompetent white american male writing this.
replied May 17, 2016 by sam
seems some one can't find a job with opts i saw so many federal  jobs will take only  american citizens that won't take out foreign  students or even H1B's but still incompetent useless without even degrees things that they are eligible for that jobs that takes h1s and opts ,seems the guys without degrees are too greedy
replied May 8, 2016 by Raj
IT consulting companies are least bothered and scared. They are very good at breaking law. I don't think they really care about the rules DHS implement. Consultancies will find the loop hole and continue to do what they are today. DHS need more strong rules to control them.
commented May 8, 2016 by sam
i am currently working under an employer he is giving me a salary of 60k per year until now ,do i need to find a full time from a company ? from May 10th or can i stay with the same employer
replied May 8, 2016 by dan (23,552 points)
You may have to find full-time to file STEM OPT Extension.
replied May 8, 2016 by sam
yes the employer said that i was a full time employer in his company so can i stay with him or move away to a good company
replied May 8, 2016 by dan (23,552 points)
Please read the article, but wait before you move. DHS may come up with some changes. Based on the above rule, you may not be employed with a staffing company and provide services to a client. However, please wait for further updates.
commented May 8, 2016 by kumar
Greedy opts??? Really??? Have you seen any jobs with atleast 2-3 years of experience in the market atleast to apply in case of opt? Everyone is greedy, vendors , in between layers and employers. Do You  know how much of pay finally an opt guy gets after these vendors and employer shares? Dont cry on opts as though people coming from india (direct H1b's are not greedy)
replied May 12, 2016 by Prakash

Yes there are lots of jobs with 2-3 years experience. I was an OPT student before and I started my carrier with fresher experience.

And Yes most of the OPT students are GREEDY. Most of them compare themselves with others who get paid in 6 digits and try to match them. I was paid 40k in my first year and I took it. If you are really not greedy and spend sometime on your resume and job search you would definitely end up in a full time.

Stop foul crying.

replied May 12, 2016 by Raj
Yes you are right. Everyone looking for brand new car as soon as graduate, a good apartment and lots of fun!! They wanted to get a job which pays more. Sad part is most of them believe or brainwashed by consultancies that there are no job in market with 2 years experience or fresher position. They scare students that you wont find job, even if you find one it will not give you good money. 80% of students don't try to apply a single job. I have seen students who try to find good consultancies than jobs.

I applied to 1000 jobs and got call from 3. And recruited in 1. That is how it goes. We need to work hard to full time get job.
replied May 12, 2016 by dan (23,552 points)
Good one Raj.
replied May 12, 2016 by Prakash
Damm right Raj.I totally agree with you . How many OPT students apply for jobs to start with? It is easier to find jobs with consultancies, you don't have to worry about preparing for Interviews, improving your skills because some one else will take your interview.

I feel pity for people like Kumar. Kumar its people like you who encourage consultancies coz they make like easier for you and now you want to complain on them for taking your share of money. How would you defend this ?
replied May 18, 2016 by anonymous
As a current OPT student --

I agree in toto, with Raj and prakash. It is not only fault from consultancies even students like me think to earn fast money nothing wrong to some extent as today world is fast . fast food .. instant cash, credit cards, fast cars etc, everything these days are fast (one need to be prepared for worst if trying for fast).So it is the psychological thing that student face a lot as we saw same said today scholars were once upon a time did same like us . so here consultancies will take super high advantage students like me who has that fast psychological issues and also you never know how long one may stay in Us so spending a bomb on Ms course includes loan and all every student is really scary as they have to help their parents to repay them back, yea may b very few need luxury cars like you told , but majority students have high pressure to replay all debts so greedy at sometime.

 People who come on H-1 directly to usa , easily throws a word on students saying as greedy but one should understand how hard it will be .

Since Uscis tightened rules we are talking everything negative on students saying that they are greedy but it was them who encouraged students all this years hence then mentatlity is like that ., not only student .. i would say consultancies vendors just sit at home and earn like crazy .. at least now it's a good move from USCIS to restrict both consultancies ,

Finally my point is student need to plan well not going to easy , fast consultancies route they will provide free food housing etc, but they gonna earn 10 times more than that was spent.
replied May 19, 2016 by GEM
edited May 19, 2016
You don't know the difference between Career and Carrier, who allowed you to step in here .!.
replied May 19, 2016 by Redan
Ha ha what a joke. Please tell me which Consultancy offers 6 digita salary, I will join immediately. The main reason for us OPTs to join Consultancies is so that we can gain some experience for our career. As OPT students we contribute a lot to the American economy and we come with the goal of learning a lot here and progressing in life professionally. As direct h1b candidates you guys come directly from India with the only goal of making money quickly and leaving. You don't have any rights to blame or talk about OPTs.
replied May 19, 2016 by Prakash
Dude this is coming from a OPT student not from a H1.
commented May 9, 2016 by Mosharaf
I don't understand why people can think us optional in the job market. Students like me who are doing masters in US, should get preference in H1B or whatever work authorizarion is needed in US. Instead it seems day by day all the attempts taken are just to throw them out of US after their study. What does this mean - don't you believe your education system is producing right candidate for what you need? I don't think getting people from outside to fulfill your job market is benefiting you much than using people from your inside (people who finished study in US).

For OPT extension, how many people get a permanent job? Even if you have 10 years of solid experience, most of the employers trash your resume only because you are an outsider. In the work environment, I don't see many people performing very well than me, but they are permanent and I am a consultant. How is it possible! Everyone is making money here, no matter whether vendor, staffing, or employer. However, going through vendors is easier than finding a permanent job. I believe the condition for employer-employee relationship can be relaxed, if you believe that you are producing right graduate for your market.
replied May 9, 2016 by dan (23,552 points)
Students are given preference in H1B. There are 20k H1B visas set aside for MS Graduates from qualifying University.

I do agree that the Employer-Employee Relationship regulations for STEM OPT must be relaxed.
replied May 11, 2016 by anonymous
I am still confused about this article. I don't see anything about this Extension or Employee-Employer relationship in uscis website. Where did you guys get this information and how much authentic is this? Is the rule already published today, and what all the vendor companies will do if your information is correct!!
replied May 12, 2016 by anonymous
you wont say that when u pay 32000 as ur tution fee .
commented May 9, 2016 by dan (23,552 points)
edited May 9, 2016 by dan

Foreign STEM students in the US face uncertain future - Good Video 

commented May 12, 2016 by anonymous
Yes it creates big problems for OPT students. Many of students are freshers with no experience and companies tend to hire student with higher experience and expert knowledge. With no exposure to industry, student will not gain experience. Also university coursework is not intended to satisfy the industry requirements. So student will have top look out for different resources to gain knowledge in very short time which will result in exhausted system.
commented May 13, 2016 by Hari
Support Real students +1
commented May 14, 2016 by Rightinfo

this source is not right because they posted thsi from the comment section but not the response section on the USCIS Federal Register. USCIS Federal Register Response senction says nothign about this and as long as the student is a bonafide employee of the company and has a right training plan, should be enough for STEM OPT.

Please read carefully the register before posting this. It syas they made the rules more stringent than before but nothing any close to this article. Thank you.

here it is

Comment. DHS received several comments concerning various types of employment relationships and whether F-1 students could request STEM OPT extensions based on such relationships. For example, commenters suggested that an F-1 student be allowed to obtain a STEM OPT extension based on a business established and staffed solely by the student. Commenters stated that such a change would allow students to remain in the United States to start their own companies, while also improving their ability to directly benefit from their own innovations. Other commenters suggested that DHS allow STEM OPT students to engage in employment with more than two employers and be employed through a temporary agency or a consulting firm arrangement that provides labor for hire. A commenter asked DHS to clarify its position relating to placement agencies, asserting that there may be some legitimate situations in which a staffing company that supervises STEM students should not be prohibited from participating in the STEM OPT extension. In addition, a commenter suggested that DHS expand the definition of “supervisor” to include advisory board members of venture capital firms, faculty advisors, and “start-up mentors.” The commenter stated that many start-up companies are not able to offer salaries before they become profitable (instead offering compensation plans that might include stock options or alternative benefits), and recommended that DHS allow STEM OPT students to work for such companies.

Response. There are several aspects of the STEM OPT extension that do not make it apt for 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 relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03).

replied May 16, 2016 by sam
edited May 16, 2016

STEM OPT Employer Responsibilities

If you are an employer who wants to provide a practical training opportunity to a STEM OPT student during his or her extension, you must:

  • Be enrolled in E-Verify and remain in good standing.
  • Report material changes to the STEM OPT student’s employment to the DSO within 5 business days.
  • Implement a formal training program to augment the student’s academic learning through practical experience.
  • Provide an OPT opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours, and compensation.
  • Complete the Form I-983, Training Plan for STEM OPT Students. In this form,  you must attest that:
    • You have enough resources and trained personnel available to appropriately train the student;
    • The student will not replace a full- or part-time, temporary or permanent U.S. worker; and
    • Working for you will help the student attain his or her training objectives.

U.S. Immigration and Customs Enforcement may visit your worksite(s) to verify whether you are meeting the STEM OPT program requirements, including whether you are maintaining the ability and resources to provide structured and guided work-based learning experiences for the STEM OPT student.

the main problem is with staffing  and consultant companies some companies which are consultants have there own federal project they won't face any problem because they can show that the employee working under him in there own project but unfortunatly most of the consultant will not come under this rule ,i think lawyers will come up with a solution for this still there are 6 to 7 months for extensions 

please check the Form I-983 it looks some what scary

replied May 18, 2016 by Raj

This might be a solution to the problem. 

"The employer that signs the training plan must be the same entity that employs the student and provides the practical training. This means that STEM OPT extensions will not be available for certain types of working arrangements, including multiple employer arrangements, sole proprietorships, employment through staffing agencies, and employment through consulting firms that provide labor for hire. In order to comply with the new requirements, staffing agencies and consulting firms will need to have a person on site at the end customer site monitoring the work of the student and provide the training"

commented May 19, 2016 by anonymous
Hi,

I do work with full time employee from January 2016 but there were 2 months where i just took offer letter from consultancy so that i could get more time to look for job. Now when i apply for stem extension next month, my current employer will be filling all information. But what if uscis ask information for those 2 months? Will those 2 months cause problem to me? My opt started on Sep 15, 2015 and 90 period would end on Dec 14, 2015. When i didn't get a job till mid November i took offer letter from them and still kept on searching. Finally i joined as full time from Jan 11, 2016.

Can anyone suggest me what would happen in this case?

Thanks
replied May 20, 2016 by dan (23,552 points)
I answered under Q/A section.
commented May 30, 2016 by anonymous
Question 1: what if my current company(where I am legit full time employee),lays me off 10 days before 12month OPT completion date. Can I apply for STEM extension without any employer, i.e if I am unemployed?

Question 2: The way I understand is that it is very tedious process to get a STEM extension through a consulting company, hence most consultancies wont support me for STEM extension. Let me know if my understanding is correct
replied Jun 10, 2016 by anonymous
If you are unemployed you will not be able to apply for extension

if you are not working fulltime i.e., if you are hired thru any consultancy you will not be eligible for extension. The company you are working for must have direct relation with you so consultancies will not be able to help you getting an extension.
replied Jul 5, 2016 by Sam
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