The U.S. Department of Homeland Security (DHS) has instituted a new compliance activity which could surprise the unprepared employer who has hired a recent graduate on Optional Practical Training (OPT). The site visits are limited to employers who hire STEM (Science Technology Engineering or Math) graduates who have already been in OPT status for 12 months and have been approved for another 24 months, permitting a total of 36 months. While employers must be enrolled in E-Verify to hire students with OPT authorization, this easy employment option has been of tremendous benefit to employers because they do not need to sponsor the student for a new visa. On the first day of hire for pay and as part of the I-9 process, the graduate — referred to in all legislation and relevant government forms as the student — will most likely proffer a valid Employment Authorization Document (EAD), chosen from the I-9’s list of acceptable documents, to show the employer both identity and employment eligibility. There is one other joint obligation for both employer and student: while the first 12 months do not require any such filing, the 24 month extension must be requested by filing a Form I-983.
DHS has deputized Immigration and Customs Enforcement (ICE) to conduct randomly chosen employer site visits during that 24 month OPT extension period. These site visits are conducted upon 48 hours’ advance notice to the employer unless triggered by a complaint or other evidence of noncompliance. The DHS website assures employers that “Site visits ensure that STEM OPT students receive structured and guided work-based learning experiences and reduce the potential for abuses of the STEM OPT extension. During the site visit, DHS’s intent is to confirm that information reported on the student’s Form I-983 concerning the training opportunity is accurate, while not placing an unnecessary burden on employers.”
Obviously it is important an employer with any STEM employees on OPT extension have a written policy in place to have its employees prepared for a site visit. The policy must cover how to greet the ICE agent and ask for his or her business card, have them wait in the reception area, identify who should immediately be notified to meet with the ICE agent, and how that employer representative will be prepared to do so, with the ability to respond to ICE’s requests for information.
As part of the site visit, ICE may legally confirm that the employer has sufficient resources and supervisory personnel to effectively manage the training program, and may ask employers to provide evidence used to assess wages of its similarly situated US workers. If, as a result of a site visit, DHS determines that an employer or student needs to submit updated or corrected information in the Form I-983, this request will be sent to the employer in writing, with specific instructions on how the employer or student must submit the new information.
The Form I-983 is completed by both the student and employer describing the 24 month training plan. It requires the employer to certify that the student’s practical training is directly related to the STEM degree; that the student will receive on-site supervision and training consistent with the plan by experienced and knowledgeable staff; the employer has sufficient resources and personnel to provide the training plan; and the student will not replace a full- or part-time, temporary or permanent US worker.
The Form I-983 also contains a warning to the employer that the law provides “severe penalties for knowingly and willfully falsifying or concealing a material fact, or using any false document in submission of the form”. As part of completion of the I-983, the employer promises to notify the student’s Designated School Officer (DSO)* “at the earliest available opportunity regarding any material changes to the [training] Plan, including corporate restructuring, change in the EIN, reduction in compensation not tied to a reduction in hours, [or] any significant decrease in hours below 20 which the minimum required”. The employer also agrees to report termination of employment or departure of the student during the OPT period to the Designated School Officer (DSO) within 5 days of its occurrence.
When appropriate, DHS may refer matters to the US Department of Labor or any other appropriate federal, state or local agency should a site visit suggest that such a referral is warranted. It is therefore very important to have policies in place to handle a site visit by ICE relating to a student on STEM OPT extension. Indiscriminate wandering about by the ICE agent or the agent’s speaking to unprepared or unauthorized staff could result in a broader government inquiry.
*The DSO is the school officer that authorizes OPT on the student’s Form I-20 Certificate of Eligibility for Non-Immigrant Student Status, and enters this information into a US Department of State database called Student and Exchange Visitor Information System, known as SEVIS.