By Benjamin Lau and David Rugendorf
U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.
What Is STEM OPT?
STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.
What Is a Site Visit?
ICE conducts site visits to ensure that STEM OPT students receive the structured and guided work-based learning experiences required by the regulations. The purpose of the site visit is to confirm that information reported on the F-1 student’s Form I-983 training plan is accurate and being executed by the employer.
ICE generally notifies employers at least 48 hours prior to conducting a STEM OPT site visit. However, ICE is authorized to conduct unannounced site visits in the event that the agency receives a complaint or other evidence of noncompliance with STEM OPT guidelines. ICE has been sending emails directly to the managers of F-1 student STEM OPT trainees with an attached Notice of Site Visit. These communications contain:
- The date of the scheduled visit;
- A list of F-1 students whose STEM OPT training has been selected for inspection;
- A request for a copy of each F-1 student’s Form I-983, Training Plan for STEM OPT Students; and
- A request for other documentation related to the organization’s STEM OPT training program.
If you receive any communication from ICE or the Department of Homeland Security, please notify your attorney immediately before responding. This is to ensure both the legitimacy of the correspondence as well as to ensure that an appropriate response is submitted to ICE.
What Will Happen During a Site Visit?
The purpose of the STEM OPT site visit is to ensure that the employer and F-1 student are following the training plan as outlined in the Form I-983, and that the employer possesses the ability and resources to provide the structured and guided work-based learning experiences outlined in the training plan. During a site visit, ICE may review several aspects of the F-1 student’s STEM OPT training plan, including a review of pay documents to ensure that the student is being paid properly, a review of the Form I-983 training plan, and a review of the trainee’s workspace.
The inspection may include individual interviews with company personnel, a review and discussion of the F-1 student’s training plan and its implementation, and a review of the F-1 student’s skills and degree in relation to the STEM degree. ICE may also request to view F-1 student workspaces or receive a tour of the premises.
It is important that students and STEM OPT employers accurately and comprehensively complete the Form I-983 training plan, and that the F-1 student, the student’s immediate manager, and the immigration contact are all familiar with the contents of the Form I-983 training plan. Inconsistencies between the opportunity as described in the training plan and what the student is actually doing can have serious consequences for students and employers.
While this type of site visit should focus exclusively on STEM OPT, if evidence of other immigration-related violations is found during the site visit, ICE may address the violation or refer it to the appropriate agency or ICE unit for further review.
How Can I Prepare for a Site Visit?
At each worksite where an F-1 STEM OPT student is being trained, your organization should designate a point of contact, such as a human resources or immigration manager, to receive ICE officers. Receptionists and security personnel should be advised to complete the following steps should an ICE officer arrive to conduct an inspection:
- Notify the designated point of contact to inform him or her that an ICE officer has arrived to conduct a site inspection;
- Verify the officer’s identity: ask to see and take note of the officer’s identification, including badge, name, and ID number. Ask for the officer’s business card and call the number on the card to verify the identity of the officer. Officers should expect this and it is important that the officer’s identity is verified before disclosing or discussing employee information;
- Wait for the designated point of contact to arrive before releasing any information.
During the visit, the officer will ask questions, request documentation, and may take photographs. The designated point of contact should remain with the officer throughout the visit and take detailed notes, including the name, title and contact information of each officer; the names and titles of anyone interviewed by the officer; questions asked during interviews; any company documents provided to the officer; worksite areas visited by the officer; and any photographs taken by the officer. If company documents are provided to the officer, the designated point of contact should be sure to list the documents provided and retain copies. If the officer takes photographs of the worksite, the designated point of contact should ask for copies. The officer may request that the designated point of contact not be present during interviews with the F-1 student or managers. In this instance, the designated point of contact should remain available to answer any questions that may arise.
Managers, supervisors, and F-1 students should be prepared to answer questions on the following topics:
- The information provided in the trainee’s Form I-983 training plan;
- The nature of the F-1 student’s job duties at the organization;
- How the job duties relate to the F-1 student’s degree and academic program;
- Why the F-1 student is qualified for the position;
- What qualifications managers look for when hiring for similar positions;
- How the manager supervises the F-1 student and executes the training plan; and
- If the F-1 student is placed at a third-party worksite, how does the manager supervise the F-1 student and implement the training plan.
Special Note for California Worksites: Immigrant Worker Protection Act (AB 450)
Employers who have worksites in California are also required to comply with portions of the Immigrant Worker Protection Act. In 2017, California passed the Immigrant Worker Protection Act (AB 450), placing requirements on how public and private employers could interact with Federal immigration authorities. On March 6, 2018, the U.S. Department of Justice filed a lawsuit challenging the Immigrant Worker Protection Act, and on July 5, 2018, the U.S. District court enjoined California from enforcing portions of the law related to worksite inspections and employment eligibility as it applied to private employers. This means that private employers cannot currently be prosecuted for:
- Allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;
- Voluntarily allowing the federal immigration enforcement agent access to employee records; or
- Re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.
Private employers are still required to comply with the notice requirement provisions of the Immigrant Worker Protection Act. An explanation of the Immigrant Worker Protection Act, and information regarding the Act’s notice requirements, can be found here.