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New Worksite Inspections for Foreign Students New Worksite Inspections for Foreign Students

New Worksite Inspections for Foreign Students

On-site inspections in the immigration context are not new, but the universe of individuals subject to those inspections continues to grow. Most recently, the Department of Homeland Security (DHS) has begun conducting on-site inspections for F-1 students working pursuant to STEM Optional Practical Training (OPT) employment authorization. These inspections take place at the actual location of employment, so if you are an employer who employs F-1 students pursuant to STEM OPT, here is what you need to know:

Background and Purpose

In 2016, DHS issued a final rule to improve and expand training opportunities for F-1 students with science, technology, engineering and math (STEM) degrees. A qualifying F-1 student is required to submit a Form I-983 Training Plan completed by the student and the employer that outlines details regarding the planned training and terms of employment. The F-1 student then submits an application to U.S. Citizenship and Immigration Services for approved employment authorization. If the application is approved, the F-1 student is afforded two (2) additional years of employment authorization.

The rule also includes a number of specific obligations for STEM OPT employers. The obligations are intended to ensure the integrity of the program and provide safeguards for U.S. workers in related fields. Specifically, the rule seeks to ensure that the terms and conditions of a STEM practical training opportunity are commensurate with those of similarly situated U.S. workers. The final rule also gave Immigration and Customs Enforcement (ICE) authority to review a number of aspects of an international student’s work with an employer based on the Form I-983 disclosures, and the Student and Exchange Visitor Program (SEVP) unit of ICE is now conducting on-site inspections of OPT employment to do just that.

Scope of Inspection

The inspection is intended to check information related to the F-1 student’s STEM OPT employment and ensure F-1 students and employers are engaged in work-based learning experiences that are consistent with the information disclosed on the F-1 student’s Form I-983. During the on-site visit, the ICE officer may confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program and may review duties, qualifications, hours and compensation, etc. of the employee.

Although the scope of the on-site inspection is limited to STEM OPT issues, ICE officers may address other immigration-related violations found during their site visits.

Notice and Preparation

DHS should provide notice to the employer at least 48 hours in advance of any site visit, unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. In these instances, DHS reserves the right to conduct a site visit without notice.

If the employer is given advance notice of an on-site visit, the notice may request specific documentation or information such as a copy of the Form I-983 training plan and/or details on other F-1 students employed by the company.

The F-1 student and employer should both be well acquainted with the content and attestations in the Form I-983 and able to describe the training opportunity to an ICE officer. In addition, the employer should be prepared to discuss details of the training program, as well as the F-1 student’s role, qualifications and level of supervision.

Site Visit

Based on recent inspections conducted, the duration of the site visits has been between one to two hours; however, this may depend on the number of foreign nationals selected for inspection and what information is sought by the ICE officer.

Employers should request the ICE officer's business card and identification to confirm credentials. The designated official of the company should accompany the ICE officer(s) throughout the on-site visit, including the ICE officer's request to view the F-1 student’s workspace or a tour of the worksite premises. The designated official of the company should take detailed notes of the questions asked during the on-site visit and the documents requested and request a copy of any photographs taken by the ICE officer(s).

If the F-1 student works at a third-party location, the ICE officer may visit the third-party worksite and evaluate the employer-employee relationship and other factors to ensure the employer is supervising and training the F-1 student in compliance of the STEM OPT program.

Post Site Visit

If the ICE officer determines the employer must correct or update information on the Form I-983, the officer will do so in writing.

The F-1 student and employer must always be in compliance with the Form I-983 requirements. When signing the form, the F-1 student and employer both agree to fulfill all obligations, including notifying the designated school official (DSO) of any material changes to the training program. The F-1 student and employer should also review the I-983 instructions and update the form as needed.

If you have any questions regarding the ICE site visits or your company's obligations regarding employment of F-1 students, please contact Jenifer M. Brown, Christl P. Glier, or Areeba S. Ghouri.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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