The OPT Squeeze

Squeeze /skwēz/:  a state of forcing oneself or being forced into a small or restricted space.

The government has started the squeeze on OPT.  It looks like 3rd party staffing as well as remote work situations for OPT trainees are either completely out, or, restricted enough to eliminate practical benefit to IT staffing "companies" using foreign IT students.  

Now, this may not be too much of a disruption for entities following the spirit of OPT as a training program.  After all, it is called OP-T, not OP-W, because it is for training experience and not intended to serve as a back-door work program.  But some entities will see a major roadblock in the way they've been doing business, and it seems USCIS is concerned most with these companies in its January 24, 2018 Update.  The IT staffing "consultancies," especially the one guy LLC who collects billable hours by passing Java and Sharepoint resumes, through his apartment computer in Piscataway, to 2nd and 3rd tier subvendors (or his own dummy LLCs), must now abide by restrictions not previously in place.

You see, a student on OPT being in-sourced to an American company by an outside recruiter does not currently even need to be on the recruiter's payroll like an similar employee on H1B visa.  They are allowed to be an independent contractor.  Also, because running one's own business is allowed while on OPT, the OPT worker can actually BE the recruiter, in turn staffing other OPT "trainees." Moreover, there is no income requirement--at all--so wages can severely undercut competitors, even more so than an L1B visa IT employee.  

This new rule puts a serious kibosh on such practices that undercut the spirit of OPT.  The two things it does is, first, require an employer-employee relationship like employees on an H1B visa for example.  Second, it makes crystal clear that the learning portion of the experience needs to be conducted by the employer, and not assumed to be inherently provided by an end-client.  

Having said this, in reading the rule I'm still not 100% sure the rule entirely prohibits 3rd party staffing.  If it did, it would have said so in more certain terms.  But a Times of India article did declare off-site staffing for OPTers to be dead.  

In my initial interpretation, the rule states that the training must occur with the actual employer, not necessarily just the experiential work.  Now this may be splitting hairs, and I won't argue too much with those who read the line, "Such entities may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client," as totally prohibiting off-site IT staffing for OPT students.  But I see the word "and" as meaning that one simply cannot expect the OPT student to work as well as be trained at an end-client.  

Perhaps further clarification from the agency will shed light not this.  To be sure, this rule forces a far more restricted space to current practice of passing on low-rate OPT workers to American companies who are too skittish to deal with a simple EAD work authorization, but are just fine leaving those immigration nuances to a subvendor while clinking glasses to lower rate IT projects with their new OPT "trainee."

Now, those who are not IT staffing companies need to take care as well.  Here are some tips:  Make sure that each OPT trainee (not ‘worker’) has an individually-tailored training plan. Also, there should be some sort of schedule for supervisory reviews and ratings of plan accomplishments. Note that none of this supervision can be done by another OPT employee.  To be extra safe, I suggest some sort of in-person training with a supervisor, like a seminar, that does not involve work but is purely educational and related to the work you’re doing.  I myself must do this with interns in my law practice to make sure they are not just inexpensive labor.

Is this a nail through the heart of unscrupulous IT staffing companies who use and abuse foreign students?  We'll see. Til then, enjoy some Squeeze:


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