STEM OPT Part Two: Tips for Tech Consulting Firms
As indicated in our previous article, the Department of Homeland Security’s (DHS) new STEM OPT Rule imposes numerous requirements for employers. Simply put, these requirements make the STEM OPT program not for everyone. In their preamble to the Final Rule, DHS stated that the new STEM OPT Rule was “not apt” for certain employment arrangements. Here is exactly what the preamble said:
“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.”
It is necessary to provide a thorough analysis of the quote above. First, it is important to point out that in the entire list of “arrangements” that the STEM OPT Extension is not apt for, only consulting firm arrangements are accompanied with a qualifier. In other words, DHS did not specify what types of jobs with multiple employer arrangements or employment through temp agencies were not apt; however, DHS stated specific types of consulting firm arrangements were not apt. Thus, DHS implicitly acknowledged the fact that some jobs with consulting firms may be appropriate for the STEM OPT Extension. The list above ends with a catch all that gives further guidance; the STEM OPT Extension is not apt for all employment arrangements that “do not constitute a bona fide employer-employee relationship.” The requirement of a bona fide employer-employee relationship is at the heart of the issue of whether Tech Consulting Firms can continue to employ STEM OPT students. DHS requires the existence of a bona fide employer-employee relationship to ensure that the Rule’s key requirements can be and are adhered to.
The main concern, when it comes to consulting firms, is whether or not they have the requisite control and oversight capabilities to ensure that the student is actually progressing towards his or her learning goals. STEM OPT students within consulting firms often work at third party sites and do work that the third party ultimately benefits from. The inherent business structure of consulting firms can lead to questions about who controls the employee (the STEM OPT student). Furthermore, consulting firms may have more difficulty complying with the Rule’s requirements. Unlike some lawyers and legal experts, we believe that Tech Consulting firms can overcome these hurdles and employ STEM OPT students. The rest of this article includes a list of tips that, if followed, will help Tech Consulting companies’ chances of complying with the new STEM OPT Rule.
Tips for Tech Consulting Companies on How to Comply with the New STEM OPT Rule:
- Be mindful of the fact that employment under a STEM OPT Extension must be an educational opportunity in the form of a job. In essence, the job must provide the student an opportunity to enhance theoretical knowledge derived from a STEM Degree, with hands on practical experience.
- The employer must establish a bona fide employer-employee relationship with the STEM OPT student.
- To do this, an employer must have ultimate control of the terms and conditions of the STEM OPT student’s employment. The employer must have the power to decide the student’s job duties, and the form and manner in which he or she completes them. Also, the employer has the right to hire or fire the STEM OPT student. Furthermore, Tech Consulting companies have the right to decide where the student works. Tech Consulting companies must ensure that their relationship with third party clients does not conflict with their bona fide employer-employee relationship with the STEM OPT student.
- Tech Consulting companies must set up an oversight and training system that ensures compliance with the new Rule’s requirements. Specifically, they should do the following:
- Make sure they have a qualified supervisor to train and monitor the STEM OPT student.
- At the start of the STEM OPT term, give the student an assessment to ensure that he or she is qualified and that the opportunity is truly in line with his or her STEM Degree. This will also help determine what kind of initial training the student needs and which third party client projects are appropriate for the specific student.
- After the student’s initial assessment, the employer should provide an initial training program to help advance the student’s educational learning and ensure that he or she can adequately perform his or her duties.
- Set up requirements for the student to submit daily task reports/updates to his or her supervisor.
- When the student is at a client site, the employer should require weekly or bi-weekly Skype meetings between the student and his or her supervisor.
- Require monthly or bi-monthly supervisor site visits for where the student is working.
- Give the student frequent assessments and quizzes to ensure that he or she is progressing towards his or her overall educational goals.
Being mindful of and implementing the tips above will help Tech Consulting companies comply with the new Rule’s requirements. For a better understanding of the new STEM OPT Rule, please read part one of our STEM OPT series and visit DHS’ STEM OPT HUB website at https://studyinthestates.dhs.gov/stem-opt-hub. Lastly, due to the complexity of the new Rule, students and employers should consider seeking help from an Immigration Law Attorney.