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ICE Begins Enforcing STEM OPT Compliance with Site Visits

9/29/2019
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Immigration and Customs Enforcement (ICE) is increasing its enforcement of the Science, Technology, Engineering, and Math Occupational Practical Training (STEM OPT) Program through site visits. Though ICE has possessed the authority to make site visits since the rule Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students went into effect in May 2016, it wasn’t until recently that they conducted inspections. While the debate rages over the intention of this action—with some arguing that it’s another attempt by the White House to stifle legal immigration and others insisting it’s merely oversight—there are some important takeaways from ICE’s latest actions. 
 
What is STEM OPT?
 
The STEM OPT programs enables eligible students with STEM degrees from U.S. colleges and universities to apply for 24 months of Occupational Practical Training (OPT) in the U.S. This OPT is granted in addition to the one-year OPT awarded to all non-STEM-degree F-1 students. In order to qualify for OPT, a student must graduate from an accredited U.S. college or university, secure employment, and work a minimum of 20 hours for that employer. 
 
Employers participating in STEM OPT are responsible for providing a formal, practical training and learning program that’s related to the F-1 student’s degree. Employers must outline the details of their training program on Form I-983, which is submitted and approved by the Designated School Official at the F-1 student’s academic institution.
 
Explaining a STEM OPT Inspection
 
According to the aforementioned 2016 rule, the purpose of on-site inspections is “intended to ensure that each employer meets program requirements, including that they are complying with their attestations and that they possess the ability and resources to provide structured and guided work-based learning experiences outlined in students’ Training Plans”—or, more simply, that the information on an F-1 student’s Form I-983 is accurate and that the employer is following the outlined training plan. 
 
What to Expect from a STEM OPT Inspection
 
ICE will review any number of aspects of a student’s work at an employer. ICE officers may wish to conduct interviews with immediate supervisors, management, and human resource personnel. They may also want to inspect the F-1 student’s workspace and take a tour of the workplace. It’s also likely that ICE will want to review documents such as training plans, evaluations, and pay reports. In the words of ICE spokeswoman Carissa Cutrell, “Site visits are a general compliance measure… The visits help ensure that students and employers are engaged in work-based learning experiences consistent with the purpose of the STEM OPT program and the information supplied on the student’s Form I-983.” 
 
STEM OPT Inspection for Employers
 
In light of the recent STEM OPT inspections, employers should familiarize themselves with the training plans of the F-1 students they employ. Likewise, they should have a strong understanding of the statements and promises made in Form I-983 and have evidence to prove their compliance with the form and with regulations. In some cases, the Department of Homeland Security (DHS)—the agency responsible for overseeing employer site visits—may choose to request information concerning STEM OPT compliance via email or phone rather than send ICE officials for an on-site visit.  
 
STEM OPT Inspection at a Third-Party Site
 
If a STEM OPT student is working at a third-party site, it’s vital for employers to know that ICE might conduct their visit there. If your company is placing F-1 students off site, it’s vital that you communicate with vendors and clients to discuss the potential of an on-site visit and formulate a plan to ensure they’re prepared in the event of one.
 
STEM OPT Inspection for Students
 
The people most threatened by STEM OPT inspections are students. Currently, there are no regulatory or enforcement penalties for employer violations. However, if either the student or their employer is found out of compliance, the DHS may deny, revoke, or terminate the STEM OPT of the F-1 student. 
 
Notice of a STEM OPT Inspection 
 
In most cases, a company will receive 48 hours advanced notice of a STEM OPT inspection, along with a list of the STEM OPT trainee(s) selected for inspection, a request for their Form I-983s, and other documentation relating to the company’s STEM OPT training program. In the event that a complaint is made to ICE, or there is evidence of noncompliance, no notice is required in advance of a site visit. 
 
Planning for a STEM OPT Inspection
 
To quote Benjamin Franklin, “By failing to prepare, you are preparing to fail.” With these inspections becoming more commonplace, it’s advisable that employers take the following steps to protect themselves and the students they employ:
  • Regularly review F-1 students’ Form I-983s to ensure compliance
  • Maintain files containing all relevant STEM OPT form copies and supporting documents
  • Make sure the duties, hours, and compensation of STEM OPT students is aligned with those of the company’s U.S. workers
  • Designate a company representative to contact upon ICE’s arrival—this person should accompany the officer on their visit and take notes on what documents were provided, who was spoken to, and what questions were asked. 
In the End
 
It’s still early in ICE performing STEM OPT inspections and, as of this moment, it’s unclear just how in depth ICE will get. Employers and students alike are advised to familiarize themselves with the content of their Form I-983s and be prepared to describe their training to ICE. If you or your organization have any questions about what the increase in STEM OPT inspections means for you, contact GoffWilson today. For over 30 years, GoffWilson has helped businesses and individuals navigate the ever-changing U.S. immigration system. Immigration isn’t just what we do, it’s our passion. 
 
Filed under:Immigration Law, Worksite Enforcement