Trump’s most recent attack on the U.S. IT industry has been his recent implementation of ICE site visits on STEM OPT students and employers.

STEM OPT is a regulation created in 2008 to give additional work authorization to international students who have graduated from a U.S. university with a degree in a STEM field. Under 8 CFR 214.2(f)(10)(ii)(C)(2), a STEM field of study is a field of study “included in the Department of Education’s Classification of Instructional Programs taxonomy within the two-digit series containing engineering, biological sciences, mathematics, and physical sciences, or a related field.” The incentive is to encourage young graduates with STEM degrees to remain in the U.S. and offer their expertise to U.S. employers. STEM degreed professionals are in high demand in the U.S. and companies struggle to find the necessary talent to fill these positions.

Under the current STEM OPT regulation, DHS has the right to conduct worksite visits. “The purpose of the site visit is for DHS to ensure that each employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with any Form I-983 or successor form completed and signed by the employer. 8. CFR 214.2(f)(10)(ii)(C)(11).   It has only been recently under the current Trump administration that ICE has begun conducting these site visits.   While the regulations do not provide any specific consequences, any violations could result in the denial, revocation or termination of a student’s STEM OPT.

Why the change of heart?

On March 12, 2008, Bill Gates, then chairman of Microsoft, presented written testimony to the U.S. House of Representatives, Committee on Science and Technology. His testimony was to “highlight the gathering threat to U.S. preeminence in science and technology innovation” and to propose a four-part plan for the U.S. to maintain its position as the “world’s innovation leader.”

Part 1 of Mr. Gate’s plan was “strengthening educational opportunities, so that America’s students and workers have the skills they need to succeed in the technology-and information-driven economy of today and tomorrow.”

Part 2 of Mr. Gate’s plan was “revamping immigration rules for high skilled workers, so that U.S. companies can attract and retain the world’s best scientific talent.” In his testimony, Mr. Gates discussed the need to “encourage the best students from abroad to enroll in our colleges and universities and if they wish, to remain in the United States when they complete their studies to alleviate the crisis employers are facing due to the current H-1B visa shortage.”

Mr. Gates emphasized the need for both parts: reform our education system and reform our immigration policies. This testimony created the sense of urgency needed to address the U.S. approaching decline as global leader in innovation. This testimony also led to the 2008 creation of STEM OPT. In 2016, the STEM OPT regulation was updated and increased the work authorization extension from 17 to 24 months. It also added additional requirements and restrictions, which included the ability of DOS to conduct site inspections.

The Trump Administration’s distaste for international students became evident when it attempted to institute rules that would make international students subject to the unlawful presence bars in numerous scenarios that would make it almost perilous to study in the U.S. These rules were enjoined by a federal judge. In early 2018, USCIS also attempted to restrict STEM OPT students from working at third-party worksites. Without public notice, USCIS created this “rule” by revising its website. This change was dialed back after a lawsuit and public outcry. In August, 2018, USCIS revised its website to allow the employment of STEM OPT students at client worksite locations provided all training obligations and requirements are met. The Trump administration’s most recent attack on international students requires no rule or website revisions.  ICE visits are provided for in the regulations. Therefore, students and employers would be well-advised to seek counsel before ICE comes knocking on their door.

Now is the time to:

1. Review your Form I-983 Training Plan and ensure all requirements are being complied with;
2. Alert and prepare your HR staff, managers and/or clients of potential visits;
3. Remember, while the regulations require that ICE provide 48-hour notice, ICE may visit unannounced if there is a complaint;
4. Seek legal counsel if you are a STEM OPT employer.

Today, Mr. Gate’s testimony would fall on deaf ears. His dream of U.S. dominance in the ever-growing technical world is fading. Mr. Gate’s testimony was a plea. He knew that U.S. economic power was directly tied to dominance in technology. Technological innovation is constantly changing. STEM students are driving this change. For the U.S. to remain the world leader in science, technology and innovation, we need to keep our doors open to the future innovation leaders around the globe. Unfortunately, our current administration dwells in the stone age where progress is a scary word. Instead of a beacon of technological opportunity, the U.S. is becoming a wall of fear.  STEM students are the future. Let’s hope they stay and survive the age of Trump.