STEM Immigration Work Permits May Trigger ICE Audits
If you are an employer seeking to recruit talented foreign nationals to fill in-demand STEM (Science, Technology, Engineering, and Math) occupations, you may have heard that the odds of securing an H-1B three-year work permit in the annual H-1B lottery program are less than promising. However, you may have also heard one bit of good news – if you are an employer enrolled in USCIS’ E-Verify employment eligibility verification program2 you are eligible to secure a 24-month work permit for the training and employment of recent graduates who hold a bachelor’s or higher degree in an eligible STEM major.3 The 24-month STEM optional practical training (OPT) work permit can follow the 12-month OPT work permit that a student may obtain after graduation. Such news is most welcome as sometimes it takes three bites at the apple to succeed in obtaining an H-1B lottery number and, during the pendency of one’s efforts, the employee can continue working.
But here is the bad news: your new employee, eager to work for you, may have minimized the burdensome nature of the application that you must complete on Form I-983 along with the consequential responsibilities that you shoulder. By participating in securing the STEM work permit application, you have agreed to allow Immigration and Customs Enforcement (ICE) – the enforcement-based agency of the Department of Homeland Security – to conduct an on-site visit in order to determine your compliance with the program obligations. Although the STEM program was initiated in May 2016, only now has ICE commenced site visitations, authorized in the regulations (8 CFR section 214.2(f)(10)(ii)(C)(11).
However, do not fear. If you have carefully completed Form I-983 and maintained all compliance documentation, and have a protocol in place for government site visits, risks can be managed. Proper preplanning might avoid a government finding that you have made material misrepresentations in the required attestations of the application resulting in the loss of future participation in the STEM training program and the loss of your valuable employee, who ICE may determine has failed to maintain legal status.
In order to understand your compliance obligations, let’s first review the intent and the goal of the STEM program. The program is intended to provide a practical training opportunity to a graduate that complements and enhances their field of study. As noted on the DHS’ website, “In order to better ensure the academic benefit and integrity of the STEM OPT extension, each STEM OPT student needs to prepare and execute, with the prospective employer, a formal training plan that identifies learning objectives and a plan for achieving those objectives. … Employers may use existing training programs for evaluation of the progress of STEM OPT students, so long as the existing training program meets DHS’ requirements as outlined on the Form I-983.” 4
There are several other significant employer obligations as noted in the signed attestations on Form I-983:
- The student is not displacing a full or part-time, temporary or permanent U.S. worker.
- “The terms and conditions of the STEM practical training opportunity – including duties, hours, and compensation – are commensurate with the employer’s similarly situated U.S. workers or, if the employer does not employ and has not recently employed more than two similarly situated U.S. workers in the area of employment, the terms and conditions of other similarly situated U.S. workers in the area of employment.”5
- Student evaluations must be completed by both the student and the employer in order to ensure that practical training goals are achieved. The student submits to his Designated School Official (DSO) a self-evaluation after 12 months and a final evaluation recapping all the training and knowledge acquired during the full training program. The employer must also sign the evaluation to show concurrence with the assessment information.
- Any material changes to or deviations from an existing Form I-983 must be provided on a new I-983 form and the DSO must be notified.
- The employer must notify the DSO no later than five business days after the student’s employment terminates for any reason before the end of the authorized training period.
With respect to compensation specifically, it is important to note USCIS’ view on this issue, as indicated in the preamble to the regulations:
“DHS expects that STEM OPT students will be engaging in productive employment. DHS also expects the commensurate compensation of similarly situated U.S. workers would account for any effects of training time on productivity. While it is required for participating students and employers to explain the goals, objectives, supervision, and evaluation of a STEM OPT period, the fact that the employer is providing a work-based learning opportunity is not a sufficient reason to reduce the F-1 student’s compensation. Furthermore, such a discounted compensation also runs the risk of having a negative impact on similarly situated U.S. workers. … This compensation must be commensurate to that provided to similarly situated U.S. workers. ‘‘Similarly situated U.S. workers’’ means those U.S. workers who perform similar duties and have similar educational backgrounds, experience, levels of responsibility, and skill sets. The employer must review how it compensates such U.S. workers and compensate STEM OPT students in a reasonably equivalent manner. If an employer, for example, hires recent graduates for certain positions, the compensation provided to a STEM OPT student in such a position must be in accordance with the same system and scale as that provided to such similarly situated U.S. workers.”6
What should an employer expect during a site visit from ICE?
For some site visits, 48 hours or more notice is given; for others that are complaint-driven or have been triggered by evidence of noncompliance, ICE will visit the worksite unannounced. However, an employer who is unprepared for an unannounced visit should consider asking for time to gather the documentation. The ICE auditor may also ask to speak to the employer signatories on the Form I-983 and to the employee. An employer may also desire to have the assistance of an immigration attorney to prepare for and represent the employer during the audit.
The employer should be prepared to explain all the features of the training program. The auditor may focus on whether evaluations have been done and whether any material changes have occurred to the training plan. The issue of employee compensation may arise and the employer should be prepared to provide documentation of the wages of similarly situated employees or produce wage data derived from its compensation surveys for entry level employees.
Lastly, as is in case with all government audits, the employer should follow its protocol for site visits, ensuring that all personnel understand whom to contact at the company and know whether to limit access to the private areas of a company without a duly executed warrant.
Employers need to be aware that along with the good news and significant business advantage of obtaining two-year work permits for talented graduates who are employed in STEM occupations, they must also assume the responsibility of ensuring compliance with the STEM training obligations and readiness for an ICE audit.