10.15.19

Employers, beware. It has been reported that Immigration and Customs Enforcement has recently begun random onsite inspections of STEM OPT employment. Reports are that ICE, during its inspections, has questioned employers about whether U.S. workers had been displaced by the STEM OPT student and whether the student’s salary is comparable to that of U.S. workers.

STEM OPT refers to foreign graduates of U.S. colleges and universities who earned degrees in Science, Technology, Engineering, or Math, and who have been authorized by the U.S. Citizenship and Immigration Services to receive post-graduation Optional Practical Training. The initial period of OPT is normally for 12 months after graduation, but the OPT period can be extended for up to 24 additional months for STEM graduates (a total of 36 months after graduation).

OPT employment is often used by employers as a way to employ STEM foreign graduates for up to three years without having to file a work visa petition. OPT also allows the student additional opportunities to seek to qualify under the annual H-1B lottery.

In March 2016, regulations were issued that imposed additional requirements for STEM OPT, including the completion by the employer and student of a Training Plan (Form I-983) that explains the training and how it “is directly related to enhancing the student’s knowledge obtained through his or her qualifying STEM degree”; specifies the name of the employer official responsible for the training program; and provides for self-evaluations by the student of his or her performance. The Form I-983 must be submitted to the student’s Designated Student Officer for review and approval, and filed with the student’s record. The form must also be updated if there are any material changes.

The March 2016 regulations also authorized the U.S. Department of Homeland Security to conduct inspections of employer worksites:

DHS, at its discretion, may conduct a site visit of any employer. The purpose of the site visit is for DHS to ensure that each employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with any Form I-983 or successor form completed and signed by the employer. DHS will provide notice to the employer 48 hours in advance of any site visit, except notice may not be provided if the visit is triggered by a complaint or other evidence of noncompliance with the regulations in this paragraph...

The questions regarding the impact of STEM OPT employment on U.S. workers are consistent with the employer certifications in Form I-983 that 1) the STEM OPT student will not displace a U.S. worker; and 2) the terms and conditions of the student’s employment are equivalent to those of the employer’s similarly situated U.S. workers. If the employer does not have similarly situated U.S. workers and has not employed recently more than two similarly situated U.S. workers in the relevant geographical area of employment, the employer must certify that the terms and conditions of the student’s employment are equivalent to those of U.S. workers in that area.

Form I-983 creates obligations for the student, as well. For example, the student must certify that the OPT opportunity is directly related to his or her qualifying STEM degree and that the Designated Student Officer will be notified of any material changes to the Training Plan. Violations could adversely affect the maintenance of student status and the approval of future filings with the USCIS by the student, or on his or her behalf.

In short, employers need to be prepared for an STEM OPT inspection. The official responsible for the I-983 training opportunity must be sure that the Form is up to date and be ready to answer ICE’s questions about the employer’s compliance with its obligations under the Training Plan. Although ICE generally will provide 48 hours’ notice of the inspection, employers should have a procedure to follow if and when ICE agents arrive. Front desk personnel need to be trained about whom to contact, and they should know not to provide any other information to ICE.

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