There have been an increasing number of reports that Immigration and Customs Enforcement (ICE) has begun conducting workplace site visits for F-1 students employed pursuant to optional practical training (OPT) in the science, technology, engineering, and math (STEM) fields. While ICE has had the authority to conduct on-site inspections since 2016, it has not exercised that authority until recently. Given this new development, companies that employ STEM OPT workers are encouraged to be prepared in case ICE visits their workplaces.
What to Expect
Any employer that hires an F-1 student pursuant to STEM OPT is subject to a site inspection. The purpose of such a visit is to verify that the employer is complying with the STEM OPT regulations and to ensure adherence to the obligations contained in the employee’s Form I-983 training plan.
In most cases, ICE will provide 48 hours’ written notice before appearing for a STEM OPT inspection, though ICE may show up unannounced if it is responding to a complaint or has evidence to suggest that the company is not complying with the STEM OPT regulations. The inspection notice will typically include the date of the intended site visit, the name(s) of the STEM OPT employee(s) selected for the site visit, and a request that personnel who can answer questions about the company be present.
The notice may also include requests for documentation or information, including but not limited to
- a copy of the relevant Form I-983 training plan(s);
- the number of F-1 students the company employs;
- the names of the F-1 students that the company employs;
- the total number of employees; and
- the company’s E-verify number.
In some cases, the company may be asked to provide the requested documentation prior to the visit.
Once on site, the ICE officer(s) will often request to review and discuss the training plan with the manager responsible for training the STEM OPT employee. The officer(s) will likely ask about the employee’s duties, qualifications, hours, and compensation. More specifically, employers may be asked to discuss the following:
- The employee’s training plan and role within the company
- The relationship between the employee’s role within the company and the employee’s degree program
- The employee’s qualification to perform his or her role within the company
- The manager’s role in supervising and training the employee
The officer(s) may also ask to speak to the STEM OPT employee (although that is not always the case) to confirm the employee’s duties, qualifications, hours, and compensation. In addition, the officer may ask the employee if he or she has complied with the STEM OPT reporting requirements, which require STEM OPT students to report any material changes made to their training plans, employer noncompliance issues, or changes of employer to their designated student officers.
The duration of the visit can vary depending on the number of STEM OPT employees included in the visit, but generally lasts for about an hour. The officer(s) may follow up with the employer after the site visit if additional information is needed.
How to Prepare
Preparation and training are the keys to maintaining compliance and mitigating any disruption that may be caused by a workplace visit. The considerations below may be applicable to a wide variety of worksite investigations, and thus a little bit of training can go a long way. An employer may want to consider the following:
- Identifying a representative from the company (such as the primary immigration point person) whom reception or security personnel should contact upon the officer’s arrival;
- Training the reception or security staff to inspect the officer’s identification, request a business card, or write down the officer’s name and contact information;
- Designating a company representative to accompany the officer during the visit (though that person may not be allowed to attend individual interviews);
- Informing the company representative that legal counsel may be present during the visit (either in person or via phone);
- Training the company representative to take thorough notes during the visit, including what documents were provided, who was interviewed, and what questions were asked, etc.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to STEM OPT worksite investigations and will post updates on the Immigration blog as additional information becomes available.