At an increasing rate, employers who hire STEM OPT students are being audited by U.S. Immigration and Customs Enforcement (ICE). Such audits are being conducted to verify that students are being employed in a manner that is consistent with the minimum requirements associated with the STEM OPT program. Audits are occurring in the form of on-site inspections, often conducted on short notice. In light of these developments, we take this opportunity to guide you through the nature of these audits, as well as what employers should do in the event of an on-site inspection.
What is STEM OPT?
STEM OPT is a two-year work permit available for F-1 students who are graduates of a U.S. degree program in science, technology, engineering, or mathematics. To employ a STEM OPT student, employers must agree to a training plan that describes how the employment will further the foreign national’s skills in their academic discipline. The training plan must be completed on Form I-983, Training Plan for STEM OPT Students. Form I-983 contains a list of obligations to which, upon signing, an employer is bound to obey. Once completed, Form I-983 is submitted to the foreign national’s university for approval. If approved, the foreign national may apply to United States Immigration and Citizenship Services (USCIS) for a work permit.
What are the Obligations to which a STEM OPT Employer is Bound?
In signing Form I-983, an employer agrees to the following terms and conditions:
(1) Duty to provide the foreign national at least 20-hours-per week of employment and terms of employment commensurate with the terms and conditions applicable to “similarly situated” U.S. workers;
(2) Duty to protect temporary and permanent U.S. labor force from displacement as a result of the STEM OPT beneficiary’s employment and provide “similarly situated” U.S. workers equal terms and conditions of employment;
(3) Duty to assure employment is directly related to the foreign national’s STEM degree throughout the entire term of employment;
(4) Duty to report termination or departure of employee within five business days to the student’s school;
(5) Duty to inform the student’s school of changes to Employer Identification Number, reduction of compensation, “significant” decrease in hours per week, and any decrease in hours below 20 hours per week.
ICE may audit an employer’s compliance with all these duties, though there is heightened scrutiny placed on Items 1 – 3.
What Occurs During an On-Site Inspection?
In anticipation of an on-site inspection, ICE will generally provide 48 hours’ worth of advance notice via e-mail or telephone. However, ICE need not provide any notice when they suspect an active violation of the STEM OPT program.
In advance of the audit, ICE officers will typically request the employer’s HR department to produce payroll records to review whether the foreign national is working the minimally required 20 hours per week. Payroll records may also be used to check whether any U.S. employee was laid off as a result of the foreign national’s employment, as well as reviewing whether similarly situated employees are being paid fairly.
The main purpose of the on-site inspection itself is to check whether the foreign national is, in fact, working in accordance with the training plan. In this regard, ICE may examine the foreign national’s workspace, interview managers and colleagues, and even ask to review the beneficiary’s work product to verify they are working within the confines of their training plan. ICE may also investigate whether the employer maintains the ability and resources to provide a structured and guided work-based learning experience to the foreign national, including providing adequate day-to-day supervision.
What to do if Selected for Audit?
ICE audits are matters not to be taken lightly, as there are potential civil penalties and back wage liabilities associated with the STEM OPT program. An employer confronted with an audit should contact their immigration counsel immediately.
Typically, we will work with employers to review the Form I-983 and determine whether the foreign national has worked within the confines of their delineated training program. We will also review the entirety of the term of the foreign national’s employment to assess whether there are any wage and hour violations. Similarly, we will review the entirety of an employer’s operation to identify similarly situated employees and, if so, determine whether they were paid in accordance with STEM OPT regulations. Equally important, we will craft a plan to assure the on-site inspection is minimally invasive and in accordance with the employer’s internal safety and hazard protocols. Once the on-site inspection is concluded, we will help employers assess their potential liability, and if need be, reach a settlement with ICE.
In short, please remain aware that STEM OPT is another area in which ICE is stepping-up its enforcement efforts. Should you be selected for audit and/or on-site inspection, you can take comfort in knowing the audit is likely part of a larger national trend. That being said, these audits should be taken with the seriousness they deserve. If you are contacted by ICE, please know that you can reach out to our firm for guidance.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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