In a new development, DHS/Immigration Customs Enforcement (ICE) has commenced site visits to employer locations that train STEM OPT students. This program began about 12 days ago, and clients have started reporting site visits to verify STEM OPT related information.
- Advance Notice to Employers:
According to the Study in the States website maintained by DHS, 2 days (48 hours) advance notice will be provided prior to a site visit. The site specifically states:
DHS will provide notice to the employer at least 48 hours in advance of any site visit, unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. In these cases, DHS reserves the right to conduct a site visit without notice. Emphasis supplied
- Verification of I-983 and Training Program:
DHS mentions limiting the scope of the site visits to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983. The site specifically states:
As part of a site visit, DHS may:
- Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.
- Ask employers to provide the evidence they used to assess wages of similarly situated U.S. workers.
- ICE Oversight with DOL and Other Federal and Local Agency Referrals:
Although the program is being overseen by ICE personnel, any violations may be referred to the U.S. Department of Labor or any other appropriate federal, state or local agency should a site visit suggest that such a referral is warranted. In other words, the site visit may not be strictly limited to immigration matters.
- Follow Up and Oversight:
DHS will provide written instructions to correct any violations and conduct follow up review and additional site visits to ensure compliance.
When the STEM OPT program was first introduced, DHS rules offered insight into how the program would be tracked and administered. As far as employers are concerned, the rule specifically requires among other things:
- it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity;
- the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and
- the opportunity helps the student attain his or her training objectives.
It also requires:
that the student and employer report changes in employment status, including the student’s termination or departure from the employer.
both the student and the employer are obligated to report to the DSO material changes to, or material deviations from, the student’s formal training plan.
The site visits are authorized by and being conducted pursuant to the final rule on STEM OPT issued on March 11, 2016 and have statutory basis in federal law (U.S.C. 1372 and 1762.) that requires DHS to establish an electronic means to monitor and verify, among other things, the admission of international students into the United States, their enrollment and registration at approved institutions, and any other relevant acts by international students. A summary of the major provisions of the rule also specifically states:
…to ensure compliance with program requirements, the rule provides for DHS site visits to employer locations in which STEM OPT students are employed. Although DHS will generally give notice of such site visits, DHS may conduct an unannounced site visit if it is triggered by a complaint or other evidence of noncompliance with the regulations. Emphasis supplied.
It is obvious the USCIS seeks to not only verify information, but enforce the rules established for the process.
- So, as a first step, employers must conduct an immediate audit of all I-983 filed and outstanding for students currently receiving training. The “training program” schedule should be revisited and any internal reporting and review of how the student is fulfilling his or her training objectives, should be properly documented.
- In fact, all program information should be carefully documented for DHS inspection.
- HR personnel not familiar with the contents of the I-983, should immediately familiarize themselves with program information and work with supervisors to update any I-983s.
- We recommend having both a time sheet style progress report of the milestones involved in the training program, and feedback reports from the students countersigned by the supervisor for ready reference.
- Any changes in the training program should be communicated to the DSO.
- For IT consulting companies that are offering training in conjunction with an end-client, all program information should be made available to the end client supervisor and training schedules properly vetted.
- Salaries paid to STEM-OPT students should be readily available; please remember that STEM-OPT students may not be treated as billable resources since they are receiving training.
- Social media (LinkedIn) and other information regarding the student’s duties and skills, must tie in with the information provided on the I-983.
- Although DHS is required to provide 48-hours’ notice, it is highly unlikely employers can always expect to receive it. Therefore, mock inspections should be carried out to ensure the employer has a process in place to handle DHS inspection with the least amount of disruption possible under the circumstances.
Additional information regarding the I-983 and whether IT consulting companies should complete it, is contained an earlier blog article. Please see: A Memo to IT Consulting Companies in the STEM OPT Context
Finally, please do not hesitate to contact us to schedule an appointment to discuss any compliance related issues.