Employment Law Report
ICE On-Site Inspections: A New Concern for STEM OPT Employers
All STEM OPT employers need to be aware of reports that Immigration and Customs Enforcement (“ICE”) has begun random on-site inspections of STEM OPT employers. It is becoming increasingly important for any business that employs STEM OPT students to plan and train staff for the day ICE comes knocking at your door.
“STEM OPT” is a reference to foreign graduates of U.S. universities who earned degrees in Science, Technology, Engineering, or Math (“STEM”), who have been approved by the U.S. Citizenship and Immigration Services to receive post-graduation Optional Practical Training (“OPT”). Employers often use OPT to employ foreign STEM graduates because it allows employers a period of generally one to three years to employ a foreign student without having to file a work visa petition. Students from other countries often pursue STEM OPT employment because it allows them additional opportunities to qualify under the annual H-1B lottery.
Regulations issued in March 2016 made substantial changes to STEM OPT, such as requiring the completion of a Training Plan (Form I-983), by the employer and student, that (1) explains what training the STEM graduate is being provided and how it is related to enhancing the student’s STEM knowledge; (2) specifies the name of the employer official responsible for the training program; and (3) provides for self-evaluation by the student of his or her performance. The regulations also authorize ICE to conduct on-site visits to verify that employers of STEM foreign graduates are in compliance with the regulations and meet the obligations of their training plans. ICE may also review whether the duties, hours, and compensation of STEM OPT trainees are commensurate with those of similarly situated U.S. workers in the company. During the site visit, ICE may review the training plan, the employee’s pay records, the Form I-983, the employee’s work area and other parts of the premises. Although the on-site visits are intended to focus on STEM OPT, if any evidence is found during the on-site visit of other immigration-related violations, ICE may address the violation or refer it to an appropriate agency.
While these site visits have been authorized since 2016, ICE has not begun conducting the inspections until now. In short, employers need to be prepared for a STEM OPT inspection. While ICE is generally required to provide a notice of inspection 48 hours prior to the on-site visit, this notice is not required if a complaint has been made to ICE or there is evidence indicating noncompliance or violations of the STEM OPT regulations. Therefore, it is very important for employers to be well-versed with the contents of the training plan forms used for STEM OPT students because there can be little to no warning of a visit. The official responsible for the I-983 training opportunity must be sure that the form is up to date and be ready to answer ICE’s questions about the employer’s compliance with its obligations under the Training Plan. Employers should have a procedure in place to follow if and when ICE agents arrive. Front desk personnel, and other necessary employees, need to be trained about whom to contact when ICE agents arrive and verification and record procedures during a visit. All STEM OPT employees and their managers should be advised on the possibility of an on-site visit and what they should expect.