U.S. Department of Homeland Security (“DHS”) has begun to conduct worksite visits in connection with employees who hold F-1 student status and who have secured STEM OPT extensions. The STEM rules allow for such visits, whereby DHS officers may meet with the F-1 employee (“Trainee”) and an employer representative to confirm whether the Trainee and the employer are complying with the terms of the Form I-983 Training Plan used by both parties to secure the STEM OPT extension for the Trainee. The officer is authorized to review whether the training is directly related to the STEM degree the Trainee used to secure the extension, as well as whether the employer is performing the required training plan check-ins and paying the Trainee a wage that is commensurate with other employees who hold similar roles and who have similar qualifications.
What should employers do to prepare for a STEM OPT site visit?
As with H-1B site visits, employers should be prepared for site visits for Trainees. The same site visit protocols established for H-1B and L-1 site visits should be employed, including:
- immediately informing relevant company personnel of the site visit,
- taking notes regarding what occurred,
- making sure to ask the officer to confirm his or her identity, and
- to have a company representative accompany the officer during the site visit.
The DHS officer will likely want to meet with the employer representative who signed the Form I-983 on behalf of the employer, so the Trainee and relevant managers should be briefed on the purpose of the DHS visit and what may occur during the meeting. They should also make sure that they continue to review the relevant Form I-983 Training Plan during the course of the Trainee’s employment in order to confirm adherence to the plan. DHS officers may also visit third-party worksites, if Trainees are placed offsite. In those situations, DHS will examine the activities of the Trainee and will confirm whether the STEM employer maintains the requisite level of control over the Trainee.
Although, in most cases, employers are able to handle immigration site visits without the assistance of counsel, Maggio Kattar attorneys are available in the event that assistance is required. Regardless, our firm should be notified when such visits occur, especially if there are potential issues with the training plan and compliance with the STEM rules. Under the STEM rules, DHS officer are supposed to provide employers with at least 48 hours of notice in advance of any STEM site visits, unless DHS received a complaint or other information regarding an employer’s noncompliance with the STEM rules. Please note that DHS officers may also reach out to employers and Trainees via email or phone.
Failure to abide by the terms and conditions set forth in the STEM regulations could lead to the revocation of the Trainee’s F-1 visa status and possible deportation proceedings. Since the STEM employer and Trainee each sign the Form I-983 under penalty of perjury, DHS may also seek to impose criminal penalties against the employer and/or Trainee if misrepresentations are made on the Training Plan.
Please feel free to reach out to Maggio Kattar should you have any questions.