Until recently a provision in the May 2016, STEM OPT regulation was not enfored. Current immigration policy (81 FR 13039) clarifies DHS discretion to conduct employer site visits at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided work-based learning experiences.
While DHS had the authority to make site visits since May 2016, the agency has not begun to conduct inspections until now.
Under existing immigration policy, to be eligible to employ a STEM OPT student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students. The employer may not be the student’s “employer” in name only, nor may the student work for the employer on a “volunteer” basis. Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. See 2016 STEM OPT Final Rule (pp. 13072, 13079).
DHS will provide notice to the employer at least 48 hours in advance of any site visit unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations. Site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.
During its site visit DHS may:
· Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.
· Ask employers to provide the evidence they used to assess the wages of similarly situated U.S. workers.
Third-Party Worksites
STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.
Post-Site Visit Requests for Evidence
If, as a result of a site visit, DHS determines that an employer or student needs to submit updated or corrected information, this request will be sent to the employer in writing, with specific instructions on how the employer or student must submit the new information.
Contact Litwin & Smith for Business Immigration Services
If DHS has performed a site visit at your company, contact an immigration lawyer from the law firm of Litwin & Smith. We can help you and your employees respond to any requests for evidence and ensure your company’s compliance with immigration laws.