A recent article by Forbes reported that Immigration and Customs Enforcement (ICE) has started conducting site visits “to investigate students on Optional Practical Training (OPT) in science, technology, engineering and math (STEM) fields.” STEM OPT allows students with F-1 visas who have earned a bachelor’s degree or higher in the STEM field an additional 24 months of OPT work authorization. To qualify for STEM OPT authorization, an F-1 student must work for an employer who will provide formal training and learning within the STEM field of the student’s degree. In 2016, the regulations governing the STEM OPT work authorization program were revised to grant ICE the authority to conduct employer site visits, a power ICE had not exercised until this year.
What does a site visit entail?
The Department of Homeland Security’s (DHS) guidance on employer site visits indicates that the intention of these site visits is to “ensure that STEM OPT students receive structured and guided work-based learning experiences and reduce the potential for abuses of the STEM OPT extension.” DHS states that it will generally provide the employer with notice of an upcoming site visit 48 hours in advance, unless the visit is in response to a specific complaint. These visits will be limited to checking information related to student STEM OPT employment and ensuring compliance with the work-based learning experience requirement of the program. In addition to listing the date of the intended visit and the employees whose training has been selected for inspection, the current notice also includes a request for copies of any affected Training Plan for STEM OPT Students (Form I-983) and documents relating to the employer’s training program. ICE initially indicated that these visits would take about five hours, current information indicates that the actual time involved is closer to one to two hours.
What can we do to prepare?
Employers should carefully review any Form I-983 they have in place both for compliance and to ensure they are knowledgeable of the training plan should they have to describe it to an ICE officer. In addition to updating the Form I-983 as the student progresses, employers should make sure that students are aware of the plan goals and requirements as student interviews may be conducted as part of the on-site visit. And, of course, make sure you have properly completed the STEM OPT student’s Form I-9.
If you receive communications from ICE, you should notify your labor and employment counsel as the Form I-983 creates legal obligations on both the employee and employer, which, if violated, could jeopardize your future ability to hire STEM OPT employees.