September 24, 2018

OPT students working at third-party client sites

With so many immigration changes happening under the Trump administration, OPT Students and even experienced H1B employees are feeling the tremendous heat. OPT students were able to see their American dream put back on track when USCIS updated its website again allowing STEM OPT Students work at third-party sites. DHS clarified that STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as:

• all of the training obligations are met, and
• the employer has and maintains a bona fide employer-employee relationship with the student.

A bona fide employer-employee relationship can be maintained only if the company has senior technical resources working full-time supervising the OPT employees working at third-party sites. DHS will consider below factors on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.

• Does the employer supervise the employee and is such supervision off-site or on-site?
• If the supervision is off-site, how does the employer maintain such supervision?
• Does the employer have the right to control the work of the employee on a day-to-day basis?
• Does the employer provide the tools or instrumentalities needed for the employee to perform the duties of employment?
• Does the employer hire, pay, and have the ability to fire the employee?
• Does the employer evaluate the work-product of the employee?
• Does the employer claim the employee for tax purposes?
• Does the employer provide the employee with any type of employee benefits?
• Does the employer use proprietary information of the employer in order to perform the duties of employment?
• Does the employee produce an end-product that is directly linked to the employer’s line of business?
• Does the employer have the ability to control the manner and means in which the work product of the employee is accomplished?

We at Tek Ninjas make sure to be in compliance with all the changing immigration laws and maintain a bona fide relationship with all of our employees. For more details on how we can help you with our direct client opportunities and other hiring practices, contact us here