Watch Out for Worksite Inspections by ICE related to STEM OPT

Jason Susser, Siskind Susser PC

Recently, Immigration and Customs Enforcement (ICE) has begun conducting workplace site visits for F-1 students employed pursuant to STEM OPT. Thus, companies that employ STEM OPT workers are encouraged to be prepared in case ICE visits their workplaces.

ICE has always had jurisdiction over STEM OPT worker. However, previously, ICE didn’t use their precious resources for site inspections. The purpose of these visits is to verify the employer is complying with the STEM OPT regulations and to ensure adherence to the obligations contained in the employee’s Form I-983 training plan.

Normally, ICE will provide 48 hours’ notice before appearing for a STEM OPT inspection, although ICE may show up unannounced if it is responding to a complaint or has evidence to suggest that the company is not complying with the STEM OPT regulations. The inspection notice will typically include the date of the intended site visit, the name(s) of the STEM OPT employee(s) selected for the site visit, and a request that person who can answer questions about the company be present.

The notice may also include requests for documentation or information, including Form I-983 training plan; the numbers and names of F-1 students the company employs; the total number of employees; and the company’s E-Verify number.

Once on-site, the ICE officer(s) will often request to review and discuss the training plan with the manager responsible for training the STEM OPT employee. The officer(s) will likely ask about the employee’s duties, qualifications, hours, and compensation. The duration of the visit can vary depending on the number of STEM OPT employees included in the visit but generally lasts for about an hour. The officer(s) may follow up with the employer after the site visit if additional information is needed.

Preparation and training are the keys to maintaining compliance and minimizing any disruption caused by a workplace visit. The considerations below may be applicable to a wide variety of worksite investigations, and thus a little bit of training can go a long way. An employer may want to consider the following:

  • Identify a company representative whom reception or security personnel should contact upon the officer’s arrival;
  • Train the reception or security staff to inspect the officer’s identification, request a business card, or write down the officer’s name and contact information;
  • Designate a company representative to accompany the officer during the visit;
  • Inform the company representative that legal counsel may be present during the visit (either in person or via phone);
  • Train the company representative to take voluminous notes during the visit, including what documents were provided, who was interviewed, and what questions were asked.

If you are concerned about your company’s immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.