Determining whether a bona-fide employer-employee relationship exists under the new STEM OPT regulations

The Department of Homeland Security's new 24 month STEM OPT rule went into effect on May 10, 2016. Employers and F-1 students should be aware of the major changes to the STEM OPT program.  In particular, some employers may no longer be able to hire F-1 STEM OPT students. In response to public comments concerning whether self-employed students, temporary staffing agencies, and start-up companies (formed and staffed by the F-1 student) would qualify as "employers" under the new regulations, DHS stated: 

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). (emphasis added)

A full copy of the new OPT STEM regulations is available on the Federal Register's website. If you have questions regarding whether your employer-employee relationship will qualify for the new 24-month STEM OPT extension, please contact an attorney at Iandoli Desai & Cronin P.C. at