Companies Employing Foreign Students May Receive a Visit from ICE

Back in the day, Immigration and Customs Enforcement (ICE) pretty much limited site visits to ethnic restaurants and California farming operations. Now, it seems that ICE has any—and every business in its sights. Recently, ICE has focused on employers who have employees working in science, technology, engineering and math-related (STEM) positions.

On Valentine’s Day, the Student and Exchange Visitor Program (SEVP) sent out an announcement to post-secondary designated school officials (DSOs).

What Does the Announcement Say?

The Announcement is a reminder that the Department of Homeland Security (DHS) can conduct routine site visits to DSO offices and employers providing Optional Practical Training (OPT) to STEM students and graduates. It states that DHS will notify employers, apparently 48 hours in advance of a site visit. Additionally, the SVEP offered some tips on what students and DSOs can do in advance of a visit, including ensuring that all information is accurate and current in the SEVP portal. Employers should list any third-party worksite names and addresses in addition to the name and address of the actual STEM OPT employer.

DHS may also request information by email or phone in advance of a physical inspection. School officials also should be prepared to provide the information DHS requests, including the Form I-983[2], the work locations of STEM OPT students, supervisor’s names, wage information, and other regulatory requirements.

Employers should not underestimate the severity of not-complying with the I-983 terms, whether ICE visits or not. USCIS can terminate the student’s status for violations or refuse future visa applications, such as an H-1B. USCIS is apparently now requiring a copy of Form I-983 from STEM OPT employers when an employee requests employment authorization or an extension of employment authorization. Usually, employers keep the form on file as they are not required to submit it to USCIS.  Make sure to review all I-983 forms regularly.

This is critical since employers frequently hire STEM OPT students to work in their IT departments, on research and development, and provided essential support to design, engineering and technical companies. STEM employees work in almost every industry imaginable.

What is ICE Looking for?

In September, 2019, the American Immigration Lawyers Association (AILA) issued a Practice Alert to its member attorneys that DHS is ramping-up its on-site STEM OPT inspections, based on reports from employers. Under the regulations related to STEM OPT employment, DHS must limit its inspections at employer’s sites or at and third-party worksites to the following:

  • How the employer determined the salary for a STEM OPT employee.
  • Whether the employer has the structure, resources, and ability to supervise and train the employee as outlined in students’ Training Plans.
  • What is the relationship between the employer and the employee at any third-party worksite at which the employee is placed.
  • Whether the employer is following the attestations it made when hiring the OPT employee.
  • Are both the employer and employee regularly updating the I-983 as required and can they describe the training opportunity to the ICE officer.

Bottom Line

The regulations state that DHS may conduct random site visits to employers. It may also investigate an employer after visiting the DSO at the school and spotting a potential issue there. Employers should be prepared to spend several hours responding to DHS questions and supplying the documents it requests. AILA reported that in September 2019, ICE conducted the site visits and did provide a two-day advance notice to the OPT STEM worker’s supervisor by email. However, if ICE is responding to a complaint, it’s likely that the employer will not have any advance notice of an inspection.

If ICE shows up at your office, ask the officer for a business card and to please have a seat while the front-desk person locate the appropriate human resources person to escort the officer requesting a tour.

Sonseere H. Goldenberg has joined Felhaber Larson and practices in the areas of U.S. immigration and nationality law. She has over 20 years of immigration experience successfully helping families and business achieve their immigration goals.