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Immigration Bulletin – U.S. Immigration and Customs Enforcement (ICE) Agency Starts Immigration Site Visits for F-1 Students Working Pursuant to STEM/OPT

AUGUST 20, 2019 BULLETIN TO ALL IMMIGRATION CLIENTS

An August 12, 2019 article published on Forbes.com warns international F-1 students that U.S. Immigration and Customs Enforcement (ICE) has begun conducting on-site visits to investigate Optional Practical Training (OPT) employment.

As background, certain students in the science, technology, engineering and math (STEM) fields are eligible for an additional 24 months of OPT employment authorization in the United States after graduation/the completion of an initial 12 month OPT employment period. Although ICE has had the authority to conduct on-site visits at STEM OPT employers since May 2016 (when the STEM OPT regulations were last revised), the agency has not implemented these inspections until recently. ICE has the authority to 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 (meant to protect similarly situated U.S. workers) as well as reviewing the Form I-983 training plan to confirm that the F-1 student is engaging in employment in compliance with that plan (i.e., a structured and goal-oriented learning experience in alignment with the student’s underlying degree program).

Because these inspections are now becoming more commonplace, any U.S. company that employs F-1 students pursuant to STEM OPT should be prepared for an ICE visit. A few general practice pointers to keep in mind/ensure that your company is complying with the STEM OPT rules include:

  • Regularly reviewing the F-1 student trainees’ Form I-983 training plans to ensure that STEM OPT employment is carried out in accordance with the information set forth in respective plans (i.e., the nature of the trainee’s role within the company, how his/her position relates to the academic program, the nature of the manager’s supervision/training of the trainee, and whether the trainee is placed at a third-part worksite).
  • Ensuring that the duties, hours and compensation of STEM OPT trainees are consistent with those of similarly situated U.S. workers in the company.
  • Having a plan in place for how company personnel should respond to an ICE visit (i.e., designating a Human Resources or Immigration Manager as a point of contact for ICE, making sure all company employees know how to identify an official ICE Officer as well as who to contact at the organization if/when ICE arrives, and advising STEM OPT trainees and managers of the possibility of such a visit as well as the types of questions that may be asked/information that should be provided to ICE officers).

Please note, that for F-1 STEM OPT trainees who are placed at a third-party worksite, U.S. employers should communicate with end-clients to ensure that these companies are also prepared for an ICE visit. Most importantly, F-1 STEM OPT employers should be prepared to answer questions regarding how the organization is supervising/training the foreign national student in accordance with both F-1 STEM OPT regulations and the trainee’s own Form I-983 training plan.

While ICE is generally required to provide an employer with 48 hours’ notice in advance of a STEM OPT site visit, no notice is required where a complaint has already been filed with ICE for STEM OPT violations. If your company is contacted or visited by ICE, you should contact your attorney as soon as possible so that we can ensure you are prepared for an on-site inspection. Companies also have the right to ask ICE for attorney presence during a site visit either (either in person or by phone). If this is preferred, your company should explain to ICE that the reason for this is to ensure that the organization fully and accurately responds to ICE’s requests for information.

Please contact any member of the Cohen & Grigsby Immigration Department if you have any questions regarding the above at 412.297.4900. To receive future bulletins and news alerts, please send an e-mail to bulletins@cohenlaw.com.

Copyright © 2019 by Cohen & Grigsby, P.C. (No claim to original U.S. Governmental material.)

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