Continuing the Administration’s high scrutiny of businesses using foreign workers, including highly skilled visas, the Department of Homeland Security has announced that it will be conducting inspections of employers employing F-1 students using STEM Optional Practical Training to work. Under the STEM regulations, ICE has the discretion to conduct on-site inspections. Reportedly, it has started inspections.
The purpose of the inspections is to confirm that employers and student-employees are complying with all STEM OPT requirements and attestations in the Form I-983, Training Plan for STEM OPT Students.
The Form I-983 requirements are:
- The employer has sufficient resources and trained personnel to provide appropriate training to the student;
- The student will not replace full-time or part-time, temporary, or permanent U.S. workers;
- The student’s compensation and other working conditions are commensurate with those of similarly situated U.S. employees;
- The student will have the opportunity to attain training objectives;
- The employer plays an active role in ensuring the integrity of program;
- The student completes an annual self-evaluation that is reviewed and signed by the employer annually and submitted to the DSO; and
- The student and employer report any material changes, termination, change in employer, or employee’s non-compliance with the program (e., failure of the student to report for work for five consecutive days).
If violations are discovered, the consequences can be dire — a student can be found “out of status” and future adjudications could be negatively affected.
In addition, under the Administration’s focus on possible “fraud” at third-party worksites, ICE likely will focus on STEM OPT students who are training at their employer’s client sites. This is typically found in the IT sector.
To prepare, employers should consider:
- Training a first-responder and a back-up staff member to interact with the ICE inspector;
- Ensuring the relevant student-employees and managers are aware of everything in the Form I-983; and
- Maintaining a process for reviewing Forms I-983 to ensure compliance and appropriate updating.
According to the regulations, ICE will give the employer two days’ notice before the inspection (unless the inspection is based upon a complaint). That may not enough time to prepare if the student is at a client site.
If you have questions about these inspections, please reach out to a Jackson Lewis attorney. We are available to help you audit Form I-983 compliance and develop processes so that you are “prepared.”
