Employer & H.R. Guidance for ICE Site Inspections of STEM OPT Trainees

December 16, 2019

Background: ICE has started to conduct on-site inspections for STEM Optional Practical Training (OPT) employment pursuant to 8 CFR section 214.2(f)(10)(ii)(C)(11). The site visit will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third-party worksites.

Notification of Site Visit: Employers will be provided 48 hours advance notice before an ICE audit. Please note that no notice is required if the audit is a result of a complaint or due to reported non-compliance with SEVP rules. ICE will send an e-mail to the manager listed on the Form I-983 prior to the visit a Notice of Site Visit. The e-mail will contain the following information:

1. Date and time of visit

2. A list of the F-1 STEM OPT trainees who will be the subject of the inspection

What to Expect: The site visits can last 1.5 to 5 hours and is dependent upon the number of F-1 STEM OPT trainees who are the subject of inspection. The site visits occur at the STEM OPT employer’s principal place of business. If the STEM OPT trainees is placed at a client or customer worksite, the visit could take place at the third-party worksite. ICE will verify that the required level of on-site supervision and training is being followed pursuant to the Form I-983.

What to Prepare: Employers will need to be ready to provide the following (1) Form I-983 training plan for each F-1 STEM OPT student subject of the inspection (2) Any other information ICE determines is necessary to conduct the inspection.

Attorney Representation: The employer may request that an attorney be present, although ICE may or may not honor the request. In these instances, the employer can request that the attorney be on the phone listening to the questions when they are asked. We strongly advise that the employer contact our office once undergoing an investigation so that we can ensure the questions being asked do not overstep what is permissible to request or ask under the law.

Structure and Contents of a Site Visit: The ICE officer is typically interested in verifying information contained in the Form I-983. The officer usually requests to speak to the authorized official who signed the Form I-983, with a company’s immigration manager and managers/supervisors of the selected STEM F-1 trainees. The ICE officer may ask to speak to the F-1 STEM OPT trainees, though may not always do so. However, the F-1 STEM OPT trainee may be present during the inspection if they and the company so choose. If the F-1 STEM OPT trainee is not available on the scheduled date, you should address the issue with ICE. ICE may request a follow-up phone call or other communication with the F-1 STEM OPT trainee or may determine it can complete the investigation with the interviews with the company representatives.

When speaking to the employer, ICE will typically ask about the employer’s business, locations, number of employees. After speaking with the employer, the officer may request a tour of the facility or business premises. The officers typically take photos during the tour.

***Please note that ICE believes it does not need a warrant to enter confidential areas of facilities based on the wide discretion given to the agency for investigations in the Form I-983 instructions. To date, there has been no formal challenge to this practice since these site visits are new, so at the present time, ICE enters these areas without a warrant.

For questions or representation during a site visit, please contact your WR attorney.

 visalaw@wolfsdorf.com  1-800-VISA-LAW.

By | 2019-12-16T22:47:32-08:00 December 16th, 2019|Comments Off on Employer & H.R. Guidance for ICE Site Inspections of STEM OPT Trainees

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