The STEM OPT program allows foreign students who have graduated from a U.S. STEM-degree program to gain paid, on-the-job “Optional Practical Training (“OPT”) that supplements and directly relates to the knowledge and skills gained in their academic studies. In order to engage in post-graduation practical training, foreign students must select an appropriate STEM employer who agrees to provide them with formal training and learning objectives. In order to ensure that the U.S. employer and the foreign student are remaining compliant with the intended purpose of the STEM OPT program, before a foreign student may begin practical training, the student and his or her U.S. employer must provide the foreign student’s Designated School Official (“DSO”) with a completed Form I-983. The Form I-983 outlines the agreed-upon practical training schedule, formal training plan with goals, and compensation for the foreign student. In addition, students on STEM OPT and their U.S. employers have a shared responsibility to submit an evaluation and assessment of the student’s progress to the DSO at the end of each 12 month period of OPT training, in order to ensure that the student’s practical training goals are being satisfactorily met.

U.S. Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement (“ICE”) is now conducting on-site inspections for STEM OPT Employment. These inspections, also known as “site visits,” are a new practice in DHS’ increasing scrutiny of the activities of foreign students on F-1 visas, and are conducted by officers from ICE’s Student and Exchange Visitor Program.

The U.S. Department of Homeland Security “Study in the States” webpage states that the purpose of these site visits is to “ensure that STEM OPT students receive structured and guided work-based learning experiences and reduce the potential for abuses of the STEM OPT extension.”  DHS goes on to state that “site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.”

As these site visits are a new policy, DHS also has provided guidance on what employers should expect during a site visit. Specifically, ICE officers may review the employer’s records and request the evidence used to assess the wages of similarly situated U.S. students, and ICE officers may also confirm whether the employer has sufficient resources and supervisory personnel to effectively maintain the STEM OPT training program at the site.

While there have only been a few ICE site visits conducted since the very recent implementation of this new DHS practice, it has been reported that the site visits typically take approximately one- to two-hours. Further, it appears that employers are notified two days in advance of the site visit via an email sent to the STEM OPT student’s manager as listed on the student’s form I-983. However, DHS advises that no advance notice will be given if the visit is “triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations.”

Employers of STEM OPT students should be mindful of this latest effort to ensure compliance with U.S. immigration laws. Both the employer and the student should be familiar with the content of the Form I-983 and should be prepared to articulate the details of the training opportunity if questioned by an ICE officer. Employers must also be reminded that the Form I-983 is a legal document that creates binding and ongoing obligations and that both the employer and the student are certifying the accuracy of the content of the form. Therefore, both the employer and the student should continue to closely and carefully review the Form I-983 and update the form with the student’s DSO as needed, to report any material changes in the training program. As noted above, each 12-month period the employer also must evaluate the student’s progress in the training program. A U.S. employer’s or foreign student’s failure to comply with I-983 obligations can result in revocation of the student’s status (resulting in immediate accrual of unlawful presence in the U.S.) and have damaging consequences during subsequent USCIS or consular adjudications if there are differences among the I-983 and the foreign student’s resume and online bio.

Finally, employers should continue to educate and instruct front-line employees, such as security officers and administrative staff, on the proper procedure for ICE site visits. In the event of a site visit, the employer should always request that the inspecting officer provide a business card and always ensure that the inspecting officer is accompanied by a designated employee at all times during the site visit. As a best practice, employers should work with experienced immigration counsel to create a standardized company policy regarding ICE site visits.