Client Alert: ICE Ramping Up Efforts to Police the STEM OPT Program

Published: 02/14/2020


What Occurs During an On-Site Inspection?

In anticipation of an on-site inspection, ICE will generally provide 48 hours’ worth of advance notice via e-mail or telephone. However, ICE need not provide any notice when they suspect an active violation of the STEM OPT program.

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In advance of the audit, ICE officers will typically request the employer’s HR department to produce payroll records to review whether the foreign national is working the minimally required 20 hours per week. Payroll records may also be used to check whether any U.S. employee was laid off as a result of the foreign national’s employment, as well as reviewing whether similarly situated employees are being paid fairly.

The main purpose of the on-site inspection itself is to check whether the foreign national is, in fact, working in accordance with the training plan. In this regard, ICE may examine the foreign national’s workspace, interview managers and colleagues, and even ask to review the beneficiary’s work product to verify they are working within the confines of their training plan. ICE may also investigate whether the employer maintains the ability and resources to provide a structured and guided work-based learning experience to the foreign national, including providing adequate day-to-day supervision.

What to do if Selected for Audit?

ICE audits are matters not to be taken lightly, as there are potential civil penalties and back wage liabilities associated with the STEM OPT program. An employer confronted with an audit should contact their immigration counsel immediately.

Typically, we will work with employers to review the Form I-983 and determine whether the foreign national has worked within the confines of their delineated training program. We will also review the entirety of the term of the foreign national’s employment to assess whether there are any wage and hour violations. Similarly, we will review the entirety of an employer’s operation to identify similarly situated employees and, if so, determine whether they were paid in accordance with STEM OPT regulations. Equally important, we will craft a plan to assure the on-site inspection is minimally invasive and in accordance with the employer’s internal safety and hazard protocols. Once the on-site inspection is concluded, we will help employers assess their potential liability, and if need be, reach a settlement with ICE.

In short, please remain aware that STEM OPT is another area in which ICE is stepping-up its enforcement efforts. Should you be selected for audit and/or on-site inspection, you can take comfort in knowing the audit is likely part of a larger national trend. That being said, these audits should be taken with the seriousness they deserve. If you are contacted by ICE, please know that you can reach out to our firm for guidance.


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