ICE Agents Reportedly Making Inspections of STEM/OPT Worksites
Many U.S. companies employ international students, classified as F-1 non-immigrants, engaged in post-graduate Optional Practical Training (“OPT”). Some of these students may have completed (or may be completing) the first twelve months of OPT and are in a 24-month extension of OPT, known as STEM OPT.
STEM OPT is only available to F-1 students who have graduated in a STEM major – Science, Technology, Engineering, Mathematics. Unlike any other group of international students, F-1’s graduating in STEM majors can qualify for an initial 12-month period of OPT followed by an additional 24-month period of OPT, for a total of 36 months of post-completion training or experiential learning, as an F-1 student.
STEM OPT is under scrutiny from the Trump Administration and there have been reports of the Student and Exchange Visitor Program (“SEVP”) unit of U.S. Immigration and Customs Enforcement (“ICE”) conducting on-site inspections of companies with F-1 students on STEM OPT. The purpose of the ICE site visits of work sites with STEM OPT participants is to ensure that employers are complying with the Form I-983 Training Plans that accompany all applications for STEM OPT.
ICE has always had the legal authority to make site visits to confirm that F-1 students on STEM OPT are engaged in activities appropriate to their status. However, until recently, such site visits were infrequent and were more common for companies with H-1B workers.
If ICE selects a company for a site visit, agents will present themselves to their front desk personnel and show identification. They will then start to ask questions. They may take photographs. Essentially, ICE will use the visit to ensure that the organization is carrying out a structured work-based learning experience, consistent with the regulations and with the specific training plan completed, and signed by the organization. The inspection may include:
∙ individual interviews with company personnel
∙ a review and discussion of the F-1 trainee’s Training Plan and its implementation
∙ a review of his or her skills and degree in relation to the STEM degree
∙ a request to view F-1 trainee workplaces or receive a tour of the premises
∙ a review of whether the duties, hours and compensation of STEM OPT trainees are commensurate with those of similarly-situated U.S. workers in the company
∙ a request for details and documents on how your organization determines wages
While the site visit is generally aimed at STEM OPT and is not supposed to be for other workplace enforcement, 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.
ICE will typically provide advance notice of a site visit. In fact, the law requires a 48-hour advance notice of a STEM OPT site visit. However, no notice is required where a complaint has been lodged with ICE, or where the visit is the result of evidence indicating noncompliance with STEM OPT program rules.
Thus far, ICE has been sending e-mails directly to the managers of STEM OPT participants with an attached Notice of Site Visit. The contact information is taken from the Training Plan. The Notice of Site Visit will contain the date of the scheduled visit, a list of foreign nationals whose training has been selected for inspection, a request for a copy of each named person’s Training Plan and a request for other documentation related to the organization’s STEM OPT training program, at ICE’s discretion.
In order to prepare for a prepare for a potential site visit, organizations should designate a point of contact, such as an HR representative or immigration manager, to receive ICE officers. They should also be sure to instruct receptionists and security personnel of the possibility of a site visit and whom to contact when an officer arrives.
In addition, these organizations should instruct them to request the officer’s business card, and advise them that officers should not be permitted to tour the worksite, take photographs or speak to employees before the designated company representative is notified. STEM OPT trainees and their managers should also be advised about the possibility of an ICE inspection and what to expect during the visit.