What To Know
In the 2016 regulations that expanded STEM OPT from 17 months to 24 months, the Department of Homeland Security (DHS) implemented additional integrity measures including provisions requiring employers and students to do periodic evaluations, SEVIS validations, and to notify schools of material deviations to STEM OPT training program. In addition, to enforce compliance with these new requirements, the regulations also allow the agency to perform site visits to employers who employ STEM OPT students to ensure that they are providing the structured, guided, and work-based learning experience outlined in the Form I-983 STEM OPT Training Plan. In light of recent reports that DHS has begun conducting site visits of STEM OPT employers, it is important that proactive steps be taken by all employers to ensure they are in compliance with all STEM OPT requirements.
We outline below best practices for ensuring STEM OPT compliance.
STEM OPT Compliance
D&S recommends that employers take the following steps to ensure that they remain compliant with STEM OPT regulations .
Ensure Milestones are Being Consistently Tracked and Monitored - STEM OPT students are required to complete periodic self-evaluations (one within the first 12 months of training and a final assessment at the completion of training), which must be verified and signed by the employer, as well as periodic validations of their SEVIS information with their school (every 6 months). Because noncompliance with these requirements can impact the employer’s ability to continue to employ a student pursuant to STEM OPT, D&S recommends that employers track these deadlines internally or agree to have immigration counsel track them for all STEM OPT students. D&S also recommends that employers develop a policy for who at the company is authorized to verify and sign student-self evaluations.
Ensure Compliance with Representations in I-983 STEM OPT Training Plan - Each Form I-983 STEM OPT Training Plan contains specific representations about the type of work-based learning experience the F-1 student will receive, including what skills they will apply and enhance and what type of supervision, feedback, and reviews they will receive. Therefore, STEM OPT employers should ensure that both students and their managers are aware of these representations and that the nature of the students work as well as any oversight or feedback that they will receive are consistent with what stated in the Form I-983.
Ensure Reporting Compliance to Designated School Official - D&S recommends that each STEM OPT employer develop protocols for notifying the student’s Designated School Official (DSO) of materials changes as well as employee terminations and resignations within 5 business days, including identifying a point-person from the company who is responsible for notifying the DSO.
Ensure Proper File Maintenance and Document Retention - D&S recommends creating and maintaining STEM OPT compliance files kept separate from other HR and immigration filings. These files should contain the following: (1) fully executed I-983 STEM OPT Training Plan; (2) Updated I-983 STEM OPT Training Plans with periodic evaluations completed; (3) any amended I-983 STEM OPT Training Plans used to notify the student’s DSO of material changes to or deviations from the training plan; (4) any termination or resignation notices for students who departed during their period of STEM OPT training along with email or written correspondence notifying the DSO of cessation of STEM OPT training; (5) any other periodic internal reviews, evaluations, or assessments completed by the student’s manager during their period of STEM OPT employment; and (5) any other notifications to/from or correspondence with the student’s DSO.
How to Prepare for a Site Visit
Prepare all STEM OPT Students and Managers for Questions - Both students and their managers should be aware of the representations made in the I-983 STEM OPT Training Plan and review them prior to the submission of Form I-983 to the DSO. Students and managers should be made aware of the student’s and the employer’s respective STEM OPT reporting requirements and the fact that STEM OPT employers can be subject to site visits where they could be questioned about compliance with the STEM OPT Training Plan.
Establish and Implement STEM OPT Site Visit Protocols - Similar to other DHS and ICE site visits, employers should ensure they have clear protocols in place in the event of a site visit.
What To Expect
Employers are generally given 48 hours notice prior to a site visit. Note, however, that where ICE has evidence of employer non-compliance or other violations, site visits may be unannounced. Site visits can be targeted at one student, multiple students, or all STEM OPT students at a given worksite.
During the site visit, STEM OPT employers can likely expect some of the following to occur:
To provide copies of Form I-983 STEM OPT Training Plan - Investigators may request specific Forms I-983 or all Forms I-983 for all students working pursuant to STEM OPT. Therefore, it’s important for employers to have these well organized and readily accessible (ideally separate from the student’s other HR, immigration, or personnel files).
To have investigators meet with and interview Students and their Managers and Request a Tour of the Student’s Worksite - Students may be asked about the training they are receiving and how it relates to their studies and managers may be asked about the student’s academic background, how their work is providing them extended training beyond the academic setting, whether they are familiar with STEM reporting requirements for employers.
To explain and document the employer-employee relationship - This may be of particular interest if the STEM OPT student is placed at a third-party worksite. Where this is the case ICE will want to see documentation that the employer (rather than the client at whose worksite the employee is placed) controls the work of the STEM OPT student and is ensuring that the employer (and not the client or employees of the client) is providing the student with the type of work-based learning experience outlined in their STEM OPT Training Plan.
Note that while ICE agents are typically working off of a checklist, they may ask for some or all of the above information/documentation or they may ask for different information depending on the specifics facts.
D&S is able to assist clients in developing the above recommended best practices and protocols to ensure they are in compliance with relevant legal requirements under the STEM OPT regulations.