The Student and Exchange Visitor Program (SEVP) unit of the United States Immigration and Customs Enforcement (ICE) has officially launched on-site inspections of the STEM Optional Practical Training (OPT) employment of certain F-1 trainees. The purpose of these on-site inspections is to review employer compliance with STEM OPT regulations that were revised in May 2016 as well as individual training plans for specific foreign nationals.
The Purpose and Procedure of On-Site Visits
According to the STEM OPT regulations revised in May 2016, ICE is authorized to conduct site visits to verify that employers of F-1 trainees are in compliance with the regulations and meet the obligations of Form I-983 training plans. During these on-site inspections – which last from 1 to 1.5 hours – ICE may have individual interviews with company personnel, a review and discussion of the F-1 trainee’s training plan and implementation, and a review of his/her skills and degree in relation to the STEM OPT. ICE may request to view workspace(s) of an F-1 trainee or a tour of the premises.
Further, ICE may also review whether the duties, hours, and compensation of STEM OPT trainees are commensurate with those of similarly situated U.S. workers in the company – a requirement that is found in the STEM OPT regulations. Although the on-site visits are intended to focus on STEM OPT, if any evidence is found during the on-site visit of other immigration-related violations, ICE may address the violation or refer it to an appropriate agency.
If an F-1 trainee is placed at a third-party worksite (which is permitted by the regulations), the on-site visit may take place at the third-party worksite.
Notice of On-Site Visits
Typically, ICE will notify a company in advance of an on-site visit. According to regulations, they are required to provide 48 hours of advance notice to the company. However, if a complaint has been made with ICE or there is evidence indicating noncompliance or violations of the STEM OPT regulations, ICE is not required to provide advance notice.
If a company receives advance notice by ICE of an on-site visit, the notice will usually contain the following information:
- The date of the scheduled on-site visit
- A list of STEM OPT F-1 trainees at the company whose training has been selected for inspection
- A request for a copy of the Form I-983 for all F-1 trainees listed in the notice
- A request for other documentation related to the company’s STEM OPT training program
This advance notice will likely be sent directly to the managers of F-1 trainees.
After an On-Site Visit
If ICE determines an employer must submit updated or corrected information, the agency will generally request that information in writing from the employer. In some cases, if ICE was not able to speak with everyone that they deemed to be critical to the on-site visit or was not able to obtain all of the information they requested, they may engage in follow up communications with the company.
Form I-983 provides notice of some potential enforcement actions for noncompliance for STEM OPT regulations. However, it is not clear as of now what level of violation would trigger these enforcement actions by ICE.
Preparation for On-Site Visits
The following guidelines may be helpful in preparation for on-site visits by ICE for STEM OPT:
- Notify and advise STEM OPT F-1 trainees and their managers about the possibility of an on-site visit and what they should expect during the visit.
- Notify vendors and/or clients if the F-1 trainee is placed off-site about the possibility of an on-site visit. The third-party site should be prepared to answer questions about the employment relationship between the STEM OPT employer and the F-1 trainee.
- A company should designate a point of contact to receive ICE officers and instruct receptionists and security personnel of the possibility of an on-site visit and who should be contacted when ICE arrives on-site.
- Necessary personnel at your company should receive training about asking to see an ICE officer’s identification and business card, other verification procedures, and keeping a record of on-site visits.
- A company should designate a company representative to be present throughout the on-site visit. Though ICE may decline a company representative’s request to be present during individual interviews, the company representative should remain available. The company representative should take detailed notes, including the name, title, and contact information of each officer, the individuals that are interviewed, the questions asked during the interviews, any documents provided to ICE, etc.
Please do not hesitate to contact our office if you have any questions related to this matter.