Originally published by Raymond G. Lahoud on Norris McLaughlin, P.A., Attorneys at Law
The U.S. Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) officers are visiting workplaces to check on the student employees who are in their Science, Technology, Engineering, and Math (STEM) Optional Practical Training (OPT).
Universities are cautioning their students of such visits from ICE. Massachusetts Institute of Technology was the latest among the universities to caution their students. Last year, the University of Pennsylvania and Duke University issued similar notices to students.
What to Expect
The STEM OPT regulation in May 2016 gives ICE the authority to inspect an international student’s workplace. Such inspection may include talking to supervisors or students and verifying documents. The DHS checks whether the employer has sufficient resources and supervisory personnel to effectively maintain the program. The DHS may confirm the employer’s sufficiency in resources and personnel or, on the contrary, may ask the employer to provide evidence that they used to assess wages of similarly situated U.S. workers. The DHS also checks whether the employer is paying the STEM OPT student, the same as other similarly situated employees within the organization.
With the current scenario of worksite inspections, employers must give great importance in creating a training plan. Students of STEM OPT must work with their employer to create a training plan that is specific to the student and the job position. For this, the employer must take into consideration the student’s degree and course to create a training plan that is customized for the international student.
The DHS will provide a 48-hour notice to the employer prior to conducting inspections. However, if the inspection is triggered by way of a complaint or proof of non-compliance, the DHS can visit the employer sans notice. The DHS may also refer the matter to the U.S. Department of Labor or any other appropriate state or federal agency if the visit suggests that such referral is warranted. ICE’s site visit is to confirm the information provided on the Form I-983 is accurate. Employers whose student employees are working in a third-party location must be extra cautious in preparing their training plan.
As a follow up to the site visit, the DHS may send a request in writing to the employer for the employer or the student to submit updated or current information.
What We Recommend
The data on the ICE website shows that in 2017, more than 328,000 international students are authorized to work through the OPT program of which 90,000 were approved in STEM fields. Since the employers are being subjected to workplace inspection, this would be a good time for employers to verify their training plan and to make any updates to it.
Posted in: Immigration
posted on: February 17, 2020