I agree with my colleague.
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
STEM based OPT extension requires an E -verified employer. Although cap GAP generally does not specifically require an E-verified employer it is advisable to presume any CAP extension of STEM OPT EAD is subject to all STEM OPT conditions including E-verified employment until there is clear contary clarification from the Service.
FROM USCIS website:
If an F-1 OPT STEM student currently works for two employers and wishes to apply for the 17-month extension, would both employers have to be enrolled in E-Verify?
Yes, if a student wishes to continue with both employers, each employer would need to be enrolled in E-Verify. Additionally, each job must be directly related to the student’s STEM degree.
What if my company is enrolled in E-Verify at some locations, but the hiring site where the student will be employed is not enrolled – is this sufficient?
If the hiring site where the student will be employed has not been identified in the MOU that the company signed during enrollment, that hiring site is not considered to be enrolled in E-Verify and therefore cannot employ an F-1 OPT STEM student under a 17-month extension.
Employers seeking to employ an F-1 OPT student under a 17-month extension may enroll in E-Verify in one of two ways: register the hiring site individually by signing its own MOU or registering the intended job location as an additional hiring site under the employer’s existing MOU.
This interim final rule allows an F-1 OPT STEM student to extend his or her employment authorization provided that the student has accepted employment with an employer who “…is a participant in good standing in the E-Verify program, as determined by USCIS.” How is “in good standing” defined?
To be considered in good standing, an employer must be enrolled in E-Verify either individually by signing its own MOU or as a hiring site under another MOU for another location. Once enrolled, the employer must adhere to the terms and conditions set forth in the MOU. This requires that the employer verify the employment eligibility of all new hires, not just the F-1 OPT students.
The regulatory reference to good standing is intended to emphasize and clarify that E-Verify participation for purposes of this rule means more than simply the one-time execution of the MOU; rather, it means continuing use of the system as provided under the MOU and in compliance with program requirements. Failure to be a participant in good standing could include (but is not necessarily limited to) these circumstances: The employer terminates the MOU; USCIS terminates the MOU, or suspends the employer’s system access, because of an employer’s substantial failure to follow its terms and conditions; the employer uses the system for a discriminatory or otherwise illegal or unauthorized purpose; or the employer has executed the MOU but substantially fails to use the system to verify newly hired employees at participating hiring sites.
A copy of the MOU and more information on E-Verify can be in the related links section of this page.
Work with E-verify company on OPT and until Oct 1. On Oct 1 you will join your H-1B employer if change of status is approved.
This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.