Immigration & Customs Enforcement (ICE) sent a message dated February 14, 2020 (but released in advance) to advise employers on how to prepare for its site visits to assure compliance with the STEM optional practical training (OPT) program. Unless ICE was moved to communicate with their “loved ones” as part of the holiday, we assume that they are implementing the site visit component more broadly.

Background

Foreign students (in F-1 status) may obtain permission to work for one year following graduation to gain practical training related to their studies, a program called OPT. Students with STEM majors (science, technology, engineering, and math) working for employers using E-Verify (a government immigration-status-checking program) can gain an additional two years of practical training, STEM OPT. As part of the STEM OPT program, ICE can visit the job site to determine that the work is in compliance with the regulations.

How to prepare for a site visit:

• Students should update their SEVP Portal with their correct home address and correct employer information. The employer address reported should be the address at which the student reports to work. If on a third-party client site, that address should be listed along with the STEM direct employer.
• Employers should review the I-983 (the form that is completed to describe the STEM training program). If any changes to the program have been made, including the persons who are supervising the student, location of employment, or change in job duties, the form should be amended and sent to the designated school official (DSO).
• Students and the employer representative(s) named on the I-983 should be prepared to answer questions about the STEM training program, which may come in the form of a call, email, or a personal visit from an ICE officer. Remember that the STEM program is a training program. Although productive work is being accomplished, the focus should be on how the student is honing skills gained in the STEM studies and how the student’s work is being assessed. Questions about how the work relates to the STEM degree is also likely to be questioned.
• If a STEM OPT holder has left employment, the change should be reported to the DSO. Students changing employers must report the change to the DSO as well.

If ICE contacts you (either student or employer), please keep in mind:

• You should confirm the legitimacy of the visit, including asking for credentials for an in-person visit. Check for indications of spam on email correspondence. Request a call-back number or other indication of legitimacy on a phone call. If done politely, this precaution should have no adverse consequences.
• ICE is to provide a 48-hour notice of a site visit unless it is to investigate a complaint of noncompliance.
• You may ask to involve legal counsel in any compliance visit. If notice is provided, we strongly recommend that you call a lawyer to assist. Even in a surprise visit, we recommend that counsel be called.
• ICE may request documentation of the facts provided in the I-983, including wage information. Although the I-983 is not sent to the government with the STEM OPT filing, DSOs must provide them if requested. 

Commensurate employment requirement

The STEM OPT rule says that students must have employment that is “commensurate” to other similarly situated workers. Although this requirement encompasses working conditions as well as wages, we expect wages will be the primary focus.

If the employer has two similarly situated workers, the wage must be commensurate with them. If not, the wage must be commensurate with other similar workers in the geographic area. 

The Department of Labor maintains a database of wages for another visa program (the H-1B), which has “prevailing wage” requirements. The STEM OPT rules do not require that “prevailing wages” be paid, however, it is possible the same data will be used unless the employer provides other evidence.

If you employ STEM OPT workers, we recommend you review wages and working conditions to consider if they are “commensurate” to other similarly situated workers and that any variations in wages can be explained by education, experience, duties, or other quantitative factors.