U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization. With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students. In order for an F-1 student to obtain STEM OPT work authorization, they must secure employment with an employer who will provide a formal training and learning program within the STEM field related to the student’s degree. Before an F-1 student can commence employment with a STEM OPT employer, the student and the employer must provide the Designated School Official (“DSO”) at the student’s college or university with a completed Form I-983, Training Plan for STEM OPT Students, which sets forth the schedule for practical training, the formal training plans with goals and the compensation to be paid to the student. In addition, STEM OPT employees and their employers have the responsibility to submit an evaluation and assessment of the student’s progress in the employer’s program to the DSO at the end of each 12 month period of STEM OPT training to ensure that the student’s training goals as articulated on Form I-983 are being met.
Essentially, ICE is conducting site visits to confirm that the information reported on the F-1 student’s Form I-983 is accurate and being executed as part of the employer’s training and learning program. We understand that ICE is notifying employers at least 48 hours in advance of the site visit. In instances where ICE is responding to a specific complaint or other indication of noncompliance with STEM OPT regulations, the agency may conduct the site visit unannounced. In those instances where STEM OPT employers have received notice from ICE in advance of a site visit, e-mails have been received by the employer’s managers of STEM OPT employees. The notices indicate the date of the intended visit, a list of employees to be inspected and a request for copies of affected Forms I-983 and documents relating to the employer’s training program. 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, etc. In addition, ICE may conduct interviews with other personnel, in addition to the STEM OPT employees and their managers. While ICE initially indicated that site visits would take 5 hours, we understand that the actual length of site visits has been 1 to 2 hours.
In anticipation of a STEM OPT site visit by ICE, employers and their STEM OPT employees should carefully review their existing Forms I-983 and provide updates as necessary. In addition, employers and employees should be completely familiar with the content of the Form I-983 so they can accurately describe the training and learning opportunity to an ICE officer should they be asked to do so.
Should your organization receive communication from ICE, we suggest that you notify your in-house or other attorneys before responding. Form I-983 and the employment of STEM OPT employees creates legal obligations on the employer and employee and violations could result in the termination of F-1 visa status and work authorization for the employee and could also impact the employer’s ability to hire STEM OPT employees in the future.