Solutions to 3 tough STEM OPT RFE (May, 2020 edition)

RFE for Employment directly related to studies

Most applicants pass this RFE by submitting a copy of the diploma and transcript and write up a list of relevant courses with one to two sentence description about how the course relates to the job duties. It would be helpful also to submit a list of clearly defined job duties for the position. Some have asked professors from school to write a letter stating that upon review of the job description, it is their opinion that the job duties directly relate to the studies of the specific major.

If it is not clear from the job description that the work is related to the student's degree, SEVP highly recommends that you obtain a signed letter from your supervisor or manager or the employer's hiring official stating how your degree is related to the work performed and keep it for your records. OIA does not need a copy of this statement.

The Student Exchange and Visitor Program (SEVP) recommends that you maintain evidence - for each job - of the position held, proof of the duration of that position, the job title, contact information for the your supervisor or manager, and a description of the work. This documentation should be kept for your own records and may be requested during future immigration applications (e.g. H-1B). OIA does not need a copy of this documentation.

Immigration lawyers can help you with drafting and review of your documentary evidence regarding relationship between employment and studies. If you are interested, you can make an appointment with our immigration attorney directly by clicking HERE.

RFE for Employment history

This type of RFE comes up often when the international student did not update SEVP regarding employment change, or when the USCIS officer could not determine whether more than 90 days of unemployment has accrued during student's initial OPT period. If the applicant had employment that were not reported to SEVP, then the applicant should proactively include evidence of employment, such as paycheck stubs, W-2, or employment verification letter to substantiate past employment record. USCIS has approved STEM OPT applications for applicants who failed to report some employment during initial OPT period but were able to provide evidence of employment.

Another common issue that recurs regularly is that the applicant's address seems to be far away from initial OPT employment site. Before COVID-19, SEVP has not allowed OPT students to work remotely, unless the student was working as a contractor in a client location. When the applicant failed to update new residential address with SEVP, USCIS cannot determine that work was performed, so they will ask for a list of employment history. If the applicant failed to update residential address, an explanation should be submitted to explain the discrepancy and how the applicant was able to go to the work location during each employment in initial OPT. Applicant should also submit evidence that they were living close to the work location. You can schedule an appointment with our immigration lawyer on what evidence is appropriate to show physical presence in a particular location.

Please note that working as a contractor at client location may result in the RFE for bona fide employer-employee relationship, so the applicant should actively document evidence of training by the OPT employer, not by the client. Often, the presence of an on-site supervisor from the employer would be the strongest evidence of training. For more detail please read the next section on bona fide employer-employee relationship.

Bona fide employer-employee relationship

In April 2018, USCIS updated its STEM OPT guidance and limited the types of employers who can employ STEM OPT students. The new guidance states that the employer that signs the Form I-983 (training plan) must be the same entity that provides the practical training to the students. This means that training cannot come from the client's personnel. The training must take place on-site at the employer's place of business or worksite and may not take place at the place of business or worksite of the employer's client. This requirement will most likely be relaxed due to COVID-19 because training can be conducted via video and other appropriate media. Then, USCIS updated its guidance yet again in August 2018, stating 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 me, including that the employer has and maintains a bona fide employer-employee relationship with the student.

USCIS website on STEM OPT employer-employee relationship

This RFE generally is attached to students who work off-site at a client's location and had some irregularities with their training plan. USCIS officer may wish to know more about the employment arrangement to ensure that the staffing agency or consulting firm that hired the applicant did comply with the requirement to provide training. USCIS is typically very skeptical of staffing agencies because of the widely known knowledge that staffing agency employers provide nothing more than human resources support and not technical training related to the applicant's studies.

To overcome this RFE and receive approval from USCIS, we have typically advised applicants to go through all communications with the staffing agency and from the beginning ask the staffing agency to assign an on-site supervisor. If that is not possible, at least have a rotating supervisor who are in constant contact with the employee. We also advise the employees to create lesson plans to go over with the supervisor and document meetings through meeting logs and take detailed notes on any materials that were created for the meeting, such as Powerpoint presentation and Q&A. We also encourage applicants to documents regular visits to the office of the initial OPT employer and present the record as evidence of receiving training at employer's location. We also recommend that the applicant provide contact information, such as a copy of the business card, of the direct supervisor in case USCIS wants to verify anything.

These three types of STEM OPT RFE are tough but not impossible to overcome. We cannot stress enough that a successful response starts from meticulous preparation for the future as an employee starts the OPT employment.

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