Business Immigration Insights

As Forbes has reported, US Immigration & Customs Enforcement has begun visiting the work sites of foreign students with employment authorization based on STEM degrees and employment with E-Verify employers (commonly known as “STEM OPT”).  While authority to conduct such site visits was part of regulations issued more than 3 years ago, during the Obama administration, this is the first time ICE has exercised its authority.

Although STEM OPT work permits do not require employer sponsorship, employers must develop a 2‑year training program that is kept on file with the student’s university, report changes in employment such as terminations or wage and hour reductions, and allow site visits by government inspectors.  Until now, there has been little government oversight of compliance with these requirements.

The regulations authorize ICE to visit work sites, including third-party work sites, with advance notice of 48 hours. The advance notice requirement is waived if ICE has received a specific complaint or has other reason to suspect noncompliance.

Employers who receive a site visit can expect that the ICE employee will ask if the company is still enrolled in E-Verify, has sufficient infrastructure to implement the training plan, properly supervises the student, and carries out the required periodic evaluations.  ICE may also seek evidence that students who are contracted to third‑party sites retain a true employee relationship with their contracting employer and may request information on how the student’s salary was determined and whether the student is replacing a US worker.

The STEM OPT work permit is popular with students and employers alike, as it provides work authorization for 3 years in total, and thus 3 opportunities for the student to be sponsored for an H-1B visa in the annual lottery.  With odds of success in the H-1B lottery now as low as 30 percent, employers who wish to retain talented foreign STEM students are looking for this sort of advantage.  The May 2016 STEM OPT regulations estimate that almost 9,000 employers would drop out of the E-Verify program if not for the fact that it allows them to hire a STEM OPT student.

Noncompliance puts both students and their employers at risk, but consequences fall more heavily on students.  The Department of Homeland Security may deny STEM OPT work permits to students who use a noncompliant employer’s E-Verify number on their applications.  Students also face consequences, such as denial or revocation of their work permits, for failing to report employer changes they may know nothing about, including a change in Employer Identification Number (EIN) as a result of corporate restructuring.

In light of this new trend in enforcement actions, US companies that employ STEM OPT students should ensure ongoing compliance by familiarizing the students’ managers with training plans and with reporting and evaluation requirements, and by thoroughly reviewing any changes to a STEM OPT student’s employment.