On Aug 16 2019 by Karuna Chandani Simbeck
CLIENT ALERT: Employers Prepare For STEM OPT Worksite Visits
Worksite visits are coming, and unprepared employers may lose F-1 student workers.
Worksite visits are coming, and unprepared employers may lose F-1 student workers. Anyone employing foreign works is familiar and has dealt with worksite visits related to H-1B and L-1 visa programs. However, we are just beginning to hear reports of worksite visits connected to F-1 student workers.
International students in F-1 immigration status who graduate from a U.S. institution may be eligible for up to 12 months of Optional Practical Training (OPT) that is directly related to their field of study. F-1 graduates with degrees in science, technology, engineering and math (STEM) fields may be eligible for an extension for 24 months. With valid OPT/STEM OPT work authorization, F-1 graduates can work for any U.S. employer so long as the work is at least part-time, and is directly related to their major.
Although site visits are permissible under the current STEM OPT regulations, none were observed until recently and they do not yet appear to be widespread. If you are an employer providing practical training opportunity to a STEM OPT student, you will want to plan in advance for site visits.
What Is The Purpose Of The Site Visit?
Site visits will verify whether the employer is meeting the obligations for the training plan reported on the F-1 student worker’s Form I-983. This includes verification that the training is directly related to the F-1 student worker’s qualifying STEM degree; and that the employer is conducting regular evaluations of the F-1 student worker (trainee) through the STEM extension period.
Who Will Conduct The Site Visit?
The Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency is responsible for overseeing employer location site visits.
What Questions Are Likely To Come Up?
The questions could range from basic information about the employer, such as locations of its offices, number of employees, and hours of operation to more specific questions about the trainee’s role, job duties, and what salary the trainee earns. While there is no specific wage requirement for students during the STEM OPT period, the employer must attest that the trainee’s compensation is commensurate with other similarly placed U.S. workers.
Since the employer who signed Form I-983 is responsible for providing the practical training experience, employers placing trainees at client sites should be prepared to address questions related to “bona-fide employer-employee relationship.”
Will Employers Get Advance Notice?
Under the regulations, DHS will provide notice to the employer at least 48 hours in advance. However, notice is not required if the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. Instead of a site visit, ICE may request documentation by email or phone.
How Can Employers Prepare?
Employers should put in place a protocol for STEM OPT site visits. Most employers hiring H and L employees have some protocols in place, but those will likely not address STEM OPT requirements completely.
We previously provided guidance on handling site visits in the H1B context https://www.klaskolaw.com/article/what-h-1b-employers-should-expect-during-uscis-site-visits-2/. Based on site visits for other immigration programs, we also compiled a list of the top five common mistakes during site visits https://www.klaskolaw.com/eb-5-investor-visas/top-five-common-mistakes-made-site-visits/. While there is a common theme to the site visits, employers will need to prepare for specific STEM OPT issues.
- Designate and Prepare Personnel
It will serve an employer well to have prepared designated employees on site to greet the ICE representative. Provide the designated employees with a list of exactly who needs to be contacted, both immediately at the affected location and/or elsewhere in the company.
Also prepare all relevant managers and supervisors on what information ICE agents will be seeking on their visit. Do not forget to document what occurs during the site visit.
- Request And Photocopy Agent Identification
Agents are expected to present identification showing they are authorized to conduct the investigation. Making a photocopy of the badge or card presented makes it easy to contact the agents subsequent to the visit, whether it’s to provide further information or clarify a point that was raised during the site visit.
- Do Not Leave Agents To Wander The Site Unattended
There are a number of reasons why it is important for representatives to accompany agents at all stages of the inspection. It is standard procedure for ICE agents to furnish reports summarizing their findings and possibly share this information with agencies that enforce other immigration programs, such as the H-1B. That could result in further enforcement actions/audits/site visits for the employer.
Moreover, agents who are permitted to wander the site unattended may engage in discussions with others on the site who are not knowledgeable in the areas of inquiry, or are untrained to respond, and who may, inadvertently, throw the site visit off course.
- Responding to Questions To Questions About The Trainee/Training Program
Site visits may include interviews with the trainee and/or the HR manager and supervisor. The responsible HR manager and supervisor should be familiar with the trainee’s information, including the material provided in the trainee’s Form I-983; the job duties of the trainee and how it relates to the trainee’s qualifying STEM degree.
If a STEM OPT trainee is placed at a third-party worksite, employers should be aware that ICE agents may also visit the client site. In that case, the client will also need preparation and guidance in dealing with ICE. Furthermore, in this situation, it will fall to the employer to demonstrate that a bona fide employer-employee relationship and its control over the trainee.
Having an attorney present either by phone or in person can help when actually confronted with an ICE agent. Experienced immigration attorneys at Klasko are available to address areas of concern or confusion, provide clarity, and interject if questions are outside the scope of the site visit. Our attorneys also help the client prepare an acceptable follow-up response as appropriate.
- What Is the Penalty If ICE Finds Program Violations?
STEM OPT site visits are designed to verify information that the trainee is following the training plan. If ICE believes the trainee’s employment is not the same as the training plan, the trainee’s F-1 visa may be denied, revoked, or terminated based on failing to meet the attestations in Form I-983. ICE may also initiate removal proceedings against the F-1 student and/or pursue criminal prosecutions against employers and employees who make false statements on Form I-983.
- Review your STEM OPT extension process!
- Who signs on behalf of the company?
- Who reviews?
- Who does follow up evaluations?
- Review your site visit protocol!
These are broad guidelines and can vary based on the facts of the situation. If you are contacted by ICE or want to be prepared, please reach out to your KILP contact to discuss preparation for the visit.
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