ICE is now conducting worksite inspections for STEM OPT employers. ICE’s stated purpose for conducting these inspections, or “site-visits”, is to confirm that STEM OPT students are receiving work-based practical training that directly relates to their area of study. See our previous post. Since instituting its new “site-visit” enforcement measure, ICE has issued guidance clarifying that the responsibility for describing the direct relationship between the OPT or STEM OPT job and the foreign student’s area of study lies with the foreign student. However, while the ultimate responsibility for articulating the logical relationship between the OPT or STEM OPT employment and the student’s area of study lies with the student, U.S. employers of OPT and STEM OPT workers should not consider themselves “off the hook” when it comes to ensuring that they are in compliance with the applicable regulations. Instead, employers should educate themselves on how ICE assesses whether there is a direct link between the job and the foreign student’s course of study, and ensure that both they and the students are remaining compliant with the regulations.

Before a foreign student may engage in OPT or STEM OPT employment, the student must first receive a recommendation for such employment from his or her Designated School Official (“DSO”). As part of the DSO’s decision to recommend the foreign student for employment, the DSO must determine whether there is a logical connection between the duties involved in the OPT or STEM OPT job offer and the student’s area of study. The DSO makes this determination based upon the documentation provided by the foreign student. While ICE does not have current plans to conduct site visits for OPT employers, U.S. employers of OPT workers should still take efforts to ensure that the foreign students that they employ can provide their DSO with a reasonable explanation of how the offered OPT job logically relates to the foreign student’s area of study. In order to assist in establishing this logical connection, U.S. employers should add a few sentences to the student’s offer of OPT employment letter which concisely describes the primary duties of the offered position, and explains how performing these duties will require the student to draw upon knowledge and skills he or she acquired during the underlying course of academic study.

In the case of STEM OPT employment, the DSO will require the foreign student to have an existing job offer from a U.S. employer and to submit a completed Form I-983. Completing the Form I-983 requires the foreign student and the U.S. employer to work together to develop a training plan. The training plan should clearly articulate how the student’s role, goals and objectives in the offered position will result in work-based learning that relates to the foreign student’s underlying STEM degree. For U.S. employers who previously employed the foreign student in an OPT capacity, the logical explanation that they previously included in the student’s offer letter can be used as a starting point when developing the Form I-983 training plan. As the Form I-983 process is a collaborative effort between the U.S. employer and the foreign student, U.S. employers have an opportunity to ensure that the training plan reflects the nexus between the STEM OPT employment and the foreign student’s STEM degree. A well-crafted training plan in the Form I-983 can lead to a less troublesome and penalty-free experience in the event of an ICE site visit.

In these uncertain times in U.S. immigration law, it pays for U.S. employers to adopt a culture of compliance. By educating themselves on OPT and STEM OPT policies and regulations, U.S. employers can help to defend themselves and the workers they employ from violating U.S. immigration law and suffering the adverse consequences that accompany a violation, such as having the validity of the OPT or STEM OPT employment challenged. For a link to ICE’s Policy Guidance on documenting the direct relationship between OPT and STEM OPT employment and a foreign student’s area of study, as well as sample explanations of a direct relationship, click here.

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Photo of Brenda A. Eckert Brenda A. Eckert

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination…

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination claims and related state tort claims.

Photo of Bradley M. Harper Bradley M. Harper

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green…

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green card” petitions, as well as with preparing and filing Responses to Requests for Evidence. He also provides general immigration advice to clients who have submitted or are preparing to submit family-sponsored immigrant visa (“green card”) petitions, adjustment of status applications, and applications to become naturalized U.S. Citizens.