Department of Homeland Security (DHS) has begun conducting on-site inspections of F-1 STEM optional practical training (OPT) employment. Whilst Immigration and Customs Enforcement (ICE) has had the authority to make site visits since the regulations governing the program were revised in May 2016, https://www.federalregister.gov/documents/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and
It is only from early August that employers have begun seeing and reporting site inspections against OPT STEM Students.
Pre Site Inspection: It is likely that ICE will contact the HR/Immigration manager to ask for the Form I-983 prior to the site inspection. The HR/Immigration Manager should provide any and all documents requested by ICE afterconsulting with your Immigration attorney. Additionally, the representative should attempt to set a date and time for the inspection and ask for ICE to allow the company’s attorney to be present either in person or telephonically during the inspection.
Preparing for the Site Inspection: Employers must ensure that they have a designated point of contact at each site where an OPT student is being trained or placed. Make sure you have a standard plan for which employee must be notified if ICE appears for a site visit and that officers should not be permitted to inspect files, tour the facilities or speak with employees without the designated company representative being present. his designated employee should also accompany officers during the entire site inspection and take detailed notes including the names of the officers; questions asked; documents inspected; places inspected etc. It is crucial that this designated employee also make copies of any and all documents provided to ICE officers.
During the Site Inspection: Employers should be aware that in addition to asking to see the student’s work space and tour of the premises, officers may also want to do the following:
- The purpose of the inspection seems to be to ensure that the employers are complying with STEM OPT requirements and meeting the obligations of Form I-983 training plans. In general, ICE will want to see evidence that the employer is carrying out a structure and guided work – based learning experience consistent with the regulations and with the specific training plan completed and signed by the organization. Employers MUST be well-versed with the contents of the training plans used for STEM OPT students.
- The inspection may include individual interviews with the company personnel, a review and discussion of the student’s training plan and the way it has been implemented. The officers may also want to inspect the student’s degree and review his/her skills in relation to the STEM degree and the training. Employers should ensure that the student(s) are aware that a Site Inspection may occur and they should be prepared to answer questions as to their education, training and its relevance to the training/work they are performing.
- ICE may also review wether the duties, hours and compensation of STEM OPT trainees are consistent with wage and labor laws of the city in which the student is placed. In order to make sure that students are not being paid less than similarly situated US Citizen employees, the employer may be asked to provide documentary evidence to show how they decide on wages and compensation for different level of employees.
- Employers must be aware that is a STEM OPT student is placed at an off site location, ICE has the authority to visit and conduct inspection of the client site.
- Additionally, although the purpose is NOT to find other violations, if during the course of the site inspection, ICE becomes aware of other violations of wage and labor or Immigration laws, they have the authority to address or refer inspection or follow up to the proper entity or agency.
I-9 Compliance: Employers need to be aware that every employee, including OPT STEM students must have a correctly completed form I-9 on file; therefore, please ensure that the I-9 forms are in order for all employees whether on STEM OPT or not.
Questions: Please do not hesitate to contact us should you need help with I-9 compliance or preparing for a site inspection.