STEM OPT SITE VISIT
WHAT DOES YOUR CLIENT NEED TO KNOW TO MAINTAIN STEM OPT COMPLIANCE?
In March 2016, the STEM final rule13 expanded STEM OPT to 24 months but along with expanding the maximum period, it also put into place certain compliance provisions including the right to conduct worksite visits to ensure that employers and F-1 students authorized for STEM OPT have complied with program requirements. Up until recently, the Agency has not exercised this right but today is new day and Employers and F-1 Students need to be prepared for such visits and ensure that they are compliant. What are these compliance requirements? Employer's Compliance Requirements When Employing STEM OPT Students Complete and Certify the Form I-983 Training Plan The STEM OPT employer, along with the F-1 student, must complete the Form I-983 Training Plan and provide it to the Designated School Official (DSO), who is responsible for keeping the completed form in the student's record.
The STEM OPT employer is responsible for completing Section 3 to Section 6 on the Form I-983. These sections document the relationship between the STEM OPT opportunity, which must be directly related to the students qualifying STEM degree; the academic degree received; and the goals and objectives, including the knowledge, training and skills that will be taught to the F-1 student. These sections request specific information about the company and the agreed-upon practical training schedule and compensation, as well as the formal training plan. Please note that the Official with Signatory Authority must be familiar with the STEM OPT student's goals and performance, and have the authority to affirm that the statements provided on the Form I-983 are true and correct. It is best practice to have a separate file with copies of the Form I-983 and any internal documentation related to the training, goals and supervision of the student. Evaluation on Student Progress The student must complete a self-evaluation of his or her progress toward the training goals within 12 months of the approved start date, as well as at the conclusion of the STEM opportunity. The evaluation must be reviewed and signed by the STEM OPT employer who is attesting to its accuracy. Both evaluations must be provided to the DSO no later than 10 days following their respective reporting periods. It is best practice to set up a ticker system to ensure timely completions of these evaluations and keep copies in the STEM OPT students file.
Material Changes to an Existing Form I-983 STEM OPT employers must work with the STEM OPT student to report to the DSO any material changes to or material deviations from the student's formal training plan, by completing a new Form I-983, which meets the specified requirements. This will prevent a lapse in the student's employment authorization. Material changes or deviations from the original Form I-983 may include but are not limited to the following:
Any reduction in the student's compensation that is not tied to a reduction in hours worked.
Any significant decrease in hours per week that a student engages in the STEM training opportunity. Duties, hours, and compensation with the STEM OPT employer must be commensurate with the terms and conditions of similarly situated U.S. workers in the area of employment.
Changes to the employer's commitments or student's learning objectives as documented on the Form I-983, including changes to work sites.
Any change of Employer Identification Number resulting from a corporate restructuring. Termination or Loss of Employment The employer and the student must report to the DSO within five (5) business days the termination, lay off or departure of the STEM OPT student before the end of the authorized extension period. Employers and students can satisfy this requirement, if they wish, with an email to the DSO indicating that the student was terminated or has otherwise departed, as well as the applicable date of such termination or departure. An employer shall consider a student's departure date as either:
The date the employer knows the student has left the practical training opportunity. OR
The date after five consecutive business days have elapsed and the student has not reported for their practical training (without the employer's consent), whichever date is earlier. It is best practice that all relevant parties are aware of the onboarding and termination of a STEM OPT student including Human Resource departments, Managers and Supervisors, to ensure that reporting obligations are timely met. STEM OPT Students Compliance Requirements A STEM OPT students have their own compliance requirements, which includes the following:
- A STEM OPT student may not engage in less than 20 hours per week, excluding the employer's standard leave policies.
- When STEM OPT student changes employers, the student must obtain a new DSO recommendation and submit a new Form I-983 within 10 days of starting the new STEM OPT training opportunity. The new employer must also be enrolled in E-Verify before the student begins to work for pay.
- Each STEM OPT student must complete and submit to their DSO an annual self-evaluation describing the progress of the training experience. If an opportunity ends early, the student must submit the final evaluation within 10 days following the conclusion of the opportunity. Not submitting a final evaluation would be a violation of the terms of the Form I-983, “Training Plan for STEM OPT Students,” and may jeopardize the student's nonimmigrant status.
- Each STEM OPT student must report to their DSO any material changes to, or material deviations from, the student's formal training plan.
- Each STEM OPT student must report the termination of his or her practical training experience within 10 days of the event.
- Each STEM OPT student must report to their DSO a change of legal name, residential or mailing address, employer name, employer address, and/or loss of employment within 10 days of the change.
- Each STEM OPT student must also complete a validation report every six months, confirming that this information has not changed, and provide it to the student's DSO within 10 business days of each reporting date.
- If a STEM OPT student believes that their STEM OPT employer is not complying with the terms and conditions of the 24-month STEM OPT extension regulations, the Form I-983 instructions and the completed Form I-983 on file with their DSO; the student may contact the Student and Exchange Visitor Program at the U.S. Immigration and Customs Enforcement (ICE) or report violations through Homeland Security Investigations. STEM OPT Site Visits As the Agency has ramped up STEM OPT site visits, it is important that employers of STEM OPT students are prepared for these visits. It has been reported that ICE officers are conducting these site visits and are providing 48-hour advance notice via email, as mandated by the regulations. The site visits are routinely taking about 30 to 90 minutes. They may also simply request documentation via email or phone in lieu of a site visit.
How should the Employer be prepared for such visits?
- The Employer should ensure that all front-line employees and security personnel are aware of the possibility of a site visit and direct them to the designated points of contact within the company.
- If the STEM OPT student has been placed at a third party site, the company should ensure that vendors and end-clients are aware of the possibility of a site visit.
- Officers should be asked to provide their business card and ID.
- The designated point of contact should be present throughout the site visit and timely document what occurs during the visit.
- Officers will want to speak to supervisors or managers of the STEM OPT student and possibly the student themselves.
- All points of contact, supervisors and managers should be aware of the information provided in the students' Form I-983 and be prepared to answer questions about the training opportunity. ICE may allow the Employer's attorney to be present, by phone or in person. In the event there are program violations, the regulations are silent on specific penalties for employer violations; however, it could create risks for the student including the termination of their F-1 student status and the potential initiation of removal proceeding.