ICE initiated onsite visits to investigate STEM OPT students

ICE initiated onsite visits to investigate STEM OPT students

Immigration and Customs Enforcement (ICE) officers could question international students and company managers during new site visits underway to investigate students on Optional Practical Training (OPT) in science, technology, engineering and math (STEM) fields. This is the latest in a series of actions by the Trump administration aimed at companies, high-skilled professionals and international students.

“Though ICE has had the authority to make site visits since regulations governing the STEM OPT program were revised in May 2016, the agency has not begun to conduct inspections until now,” according to the Fragomen law firm. “The inspection may include individual interviews with company personnel, a review and discussion of the foreign national’s training plan and its implementation, and a review of his or her skills and degree in relation to the STEM degree. ICE may also request to view F-1 trainee workspaces or receive a tour of the premises.”

If one looks at the May 2016 STEM OPT regulation, it’s clear ICE can review a number of aspects of an international student’s work at an employer that might not have been subject to oversight in the past. This includes examining documentation to determine whether a student in STEM OPT status is being paid properly according to the regulation. The 2016 rule states: “To guard against adverse impacts on U.S. workers, the rule requires terms and conditions of a STEM practical training opportunity to be commensurate with those applicable to similarly situated U.S. workers.”


Another area that can be examined is whether the employer has established, in the eyes of ICE, a legitimate training program for the student. ‘The rule requires each STEM OPT student to prepare and execute with their prospective employer a formal training plan that identifies learning objectives and a plan for achieving those objectives,” according to the regulation. “The STEM OPT student and his or her employer must work together to finalize that plan.”

In short, employers should be well-versed with the contents of the training plan forms used for STEM OPT students. “While the agency does not yet appear, as part of the site visits themselves, to be actively testing the statements employers make on training plan forms (Forms I-983), employers should recognize that understanding the statements and promises made by preparing the forms, and knowing they will be submitted to the government, could expose companies and signatories to potential liability,” Blake Chisam, a partner at the Fragomen law firm, told me in an interview. “As such, adequate controls over the preparation and presentation of training plan forms is essential, as is being prepared to evidence compliance with the statements made on the forms.”

Chisam notes there are also potential issues that may arise when officers give notice of a site visit or appear to conduct a visit. “Those issues may be exacerbated by the location of the work site, company policies and other circumstances,” he said.

In particular, employers with STEM OPT students working at third-party locations should be aware of the Department of Homeland Security’s recent history. In April 2018, U.S. Citizenship and Immigration Services (USCIS) changed its website and appeared to prohibit international students on STEM OPT from working at third-party locations. USCIS backtracked and eliminated the language on its website after a lawsuit was filed that asserted the agency had changed STEM OPT rules without notice and comment as required by law.




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