Immigration Policy Changes for Foreign Students & Exchange Visitors

U.S. Citizenship & Immigration Services (USCIS) has recently issued two updates that may have major consequences for foreign students and exchange visitors.

Most recently, USCIS issued a policy memorandum which changes the way USCIS will interpret and calculate unlawful presence for F-1 and J-1 visa holders (including their dependents).  Generally, a foreign national who remains in the U.S. beyond the expiration date of their I-94 Arrival/Departure Record begins to accrue unlawful presence, and in certain circumstances, may be subject to a 3-year or 10-year bar to re-admission to the United States.  Under the previous policy, however, foreign national students and exchange visitors who are granted duration of status (D/S) would not begin to accrue unlawful presence until either USCIS made a formal determination that a status violation had occurred or an immigration judge ordered a foreign national deported.

Under the new policy, starting August 9, 2018, F-1 and J-1 visa holders will begin to accrue unlawful presence on the earliest of the following:

  • The day after the student/exchange visitor no longer pursues the course of study or authorized activity, or the day after the person engages in unauthorized activity
  • The day after the grace period, after completing the course of study, program, or practical training (OPT/CPT)
  • The day after the person’s Form I-94 Arrival/Departure Record expires;
  • The day after an Immigration Judge orders the person deported or removed.

Simply put, this new policy, will have a dramatic impact on F-1 and J-1 nonimmigrants who are not vigilant with respect to maintaining valid status and/or are engaging in “unauthorized activity.”  

Additionally, last month, USCIS updated its website regarding STEM OPT extensions , which allow F-1 STEM gradates to obtain an additional 24 months of Optional Practical Training (OPT) work authorization to work for employers that participate in the E-Verify program.  The new USCIS guidance no longer permits students to engage in STEM OPT at third party worksite locations (even if the employer maintains the requisite employer-employee relationship with the STEM worker).

This new guidance changes previous policy which only required the student be a bona fide employee of the employer signing the I-983 training plan.  Now, any employees performing duties at sites not controlled by the E-Verify employer could risk being in violation of their status.

These updates are very nuanced and complex, especially when it comes to when and whether someone is in violation of their status or engaged in unauthorized activities.  As always, if you have questions on these issues or how to maintain status, please don’t hesitate to contact me

Massive Workforce Compliance Inspections Coming

Immigration & Customs Enforcement (ICE) has ordered the Homeland Security Investigations (HSI) unit to “quadruple to quintuple” the current number of routine workplace investigations of U.S. employers in the coming year.  While the Trump administration’s immigration enforcement efforts have thus far mostly focused on undocumented individuals, the goal of ICE’s new strategy is to target employers.  In particular, these workplace investigations will focus on audits of employers Employment Eligibility Verification, Forms I-9 and other employment records to determine whether employees (be they U.S. citizens or foreign nationals) are lawfully work authorized.  

ICE’s plan to ramp up worksite investigations increases the risk of significant civil penalties and possible criminal prosecution for employers who fail to comply with U.S. employment laws.  Additionally, business owners, executives, and Human Resources staff may personally face increased risk for simple Form I-9 “paperwork” errors.  

All U.S. employers must complete a Form I-9 for all of their employees in order to verify their identity and work authorization.  An employer who fails to properly complete and retain a Form I-9 for each and every employee, faces fines and penalties ranging from $539 to $2,156 for each paperwork violation.  Therefore, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules. In particular, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations.  For example, store an employee’s Form I-9 separate from other personnel records and separate current from terminated employees;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms.  Only certain I-9 deficiencies can be mitigated, but must be done accurately so as not to make deficiency worse;
  • Develop, implement, and maintain compliance policies for worksite raids and for managing CE Fraud Detection & National Security (FDNS) visits for nonimmigrant visa employees.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

USCIS Resumes Premium Processing for H-1B Cases

U.S. Citizenship and Immigration Services (USCIS) has announced that, it will resume “premium processing” for all H-1B visa cases, including pending H-1B visa cap-subject petitions.  USCIS temporarily suspended premium processing of all H-1B petitions in April 2017, however, this new announcement means that all H-1B cases, including pending petitions pursuant to both the 65,000 “regular” H-1B cap and the 20,000 “advanced degree” cap, H-1B extension petitions, and H-1B change of employer petitions are now eligible to take advantage of premium processing.  

With premium processing, employers can pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  Employers seeking to expedite the processing of a pending H-1B cap-subject case, including cases which require responses to Requests for Evidence (RFEs) from USCIS, should contact an attorney to take advantage of this program.

What DACA Recipients & Employers Need to Know About The End of DACA

President Trump has announced his plans to terminate the Deferred Action for Childhood Arrivals (DACA) program, which provides “temporary relief from deportation” and work authorization for certain undocumented immigrants who arrived in the U.S. when they were minors. There are over 800,000 DACA beneficiaries across the country, the majority of whom are legally employed by U.S. employers.

As of September 6, 2017, U.S. Citizenship & Immigration Services (USCIS) will no longer be accepting new DACA applications, however, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization until they expire. Individuals who currently have an initial DACA request pending with USCIS will have their cases adjudicated on a case-by-case basis. Those individuals with their deferred action expiring before March 5, 2018 must apply to renew their DACA (for a two-year period) before October 5, 2017. After March 6, 2018 no more DACA renewal applications will be accepted by USCIS.

WORK AUTHORIZATION

Through the DACA program, beneficiaries receive Employment Authorization Documents (also known as “work permits” or “EAD” cards) which provide lawful work authorization with U.S. employers. These cards are issued for limited periods of time and have expiration dates. Despite this new policy which will terminate the ability to renew EAD cards, current valid EAD cards will continue to provide lawful work authorization for those beneficiaries, until the EAD expires. This means DACA beneficiaries are allowed to legally continue working for U.S. employers with their EAD card until the expiration date on the card. While employers may not be aware of their employees who are on DACA until it comes time to reverify an employee’s work authorization in the Form I-9, Employment Eligibility Verification process, employers are not legally obligated to terminate an employee until after their EAD card has expired. 

SOCIAL SECURITY NUMBERS, DRIVER’S LICENSES, AND ADVANCE PAROLE CARDS

Social security numbers for DACA recipients will remain valid and can continue to be used for banking, education, housing, and other reasons. Driver’s licenses should also remain valid until the expiration date of the card (but double check with your State’s motor vehicle department to confirm). While the Department of Homeland Security (DHS) has indicated they will still honor valid Advance Parole documents, which provide immigration officers with discretionary authority to permit an individual to return to the U.S. after foreign travel, DACA beneficiaries are advised not to travel internationally, due to the risk of being denied re-entry into the U.S. upon return.

IMMIGRATION ENFORCEMENT

Information which DACA recipients provided to DHS in their DACA applications will not be proactively provided to Immigration Customs Enforcement (ICE), Customs and Border Protection (CBP), or shared with other law enforcement entities for the purpose of immigration enforcement proceedings, unless an individual poses a risk to national security or public safety. ICE has said that it has no plans to target DACA holders as their permits expire and that they will continue to remain low enforcement priorities. 

OTHER IMMIGRATION OPTIONS

DACA recipients may be eligible for other immigration relief either through family or employment. Employers with overseas offices may be able to employ affected individuals abroad. DACA recipients may be able to obtain work authorization and/or lawful residence in another country and may even be able to do so from within in the United States. 

Individuals and employers should contact qualified legal counsel to understand their options. As always, we will continue to monitor this recent DACA update and continue to provide additional analysis as information continues to become available. If you have any questions, please feel free to contact us.

New Employment Eligibility Verification, Form I-9

U.S. Citizenship & Immigration Services (USCIS) has annouced the release of a new version of the Employment Eligibility Verification, Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. Employers and Human Resources staff may begin using this new Form I-9 or continue to use the current version of the Form I-9 (dated 11/14/16 N) through September 17, 2017.  Beginning September 18, 2017, employers must use the new form.  

The revised form includes some cosmetic changes, along with changes related to acceptable I-9 verification documentation, including Consular Reports of Birth Abroad.  USCIS plans to update its M-274 “Handbook for Employers: Guidance for Completing Form I-9” in the near future.

This change, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources departments, as all U.S. employers must ensure proper completion of Form I-9 for each individual they hire.  More importantly, as the workforce compliance landscape continues to evolve, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules.  As part of this process, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms;
  • Develop, implement, and maintain compliance policies for worksite raids.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.  

Department of Labor Announces Increase in Investigations of Employment-Based Immigration Programs

The Labor Department has announced plans to more aggressively enforce employment-based nonimmigrant visa programs and crack down on abuses of worker visa programs through increased investigations.  The statement, made two months after U.S. Citizenship & Immigration Services announced it would begin targeting certain H-1B visa employers, calls for:

  • Use of all tools (including audits and site visits) to enforce labor protections provided by visa programs, including H-1B and E-3 visas;
  • Development of changes to the Labor Condition Application, which is used by employers in all H-1B filings, to identify violations and fraud;
  • Coordination between departments to strictly enforce visa program rules and make criminal referrals.

While more specific enforcement details have yet to be outlined, employers should be prepared for increased scrutiny of all visa applications and more site visits.  These proposed enforcement activities are in line with President Trump’s “Buy American and Hire American” executive order and employers should be actively working to ensure they are in compliance with all Department of Labor visa regulations.

USCIS Announces Rules to Combat H-1B Visa Fraud & New Policies for Computer-Related H-1B Occupations

U.S. Citizenship and Immigration Services (USCIS) has announced that it will begin taking a “more targeted approach” in site visits to the workplaces of U.S. companies sponsoring H-1B visa employees.  The measures described in the USCIS announcement include focusing on-site visits on H-1B-dependent companies, employers that cannot be validated with commercially available data, as well as employers petitioning for H-1B workers who work off-site at another company or organization's location (i.e. outsourcing companies, who typically petition for workers of other organizations).  These site visits will allow USCIS "to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers." These random and unannounced visits will continue nationwide, except there will now be a clearer focus on making sure the employer is legitimate. 

The announcement also encourages people to report suspected fraud of abuse in the H-1B program, and provides a new hotline phone number and email address for people to report such things as wage disparities between H-1B workers and other workers performing the same or similar duties, and H-1B workers not performing duties specified in the H-1B petition.

These new initiatives follow USCIS’ recent policy memorandum narrowing the H-1B visa eligibility for certain computer-related occupations.  U.S. employers who filed H-1B petitions for employees in programming occupations described in the memo may receive a requests from USCIS to submit additional evidence showing that the position is complex or specialized and requires a professional degree.

New Form I-9 to Verify Employment Eligibility

The Department of Homeland Security (DHS) has released a new Form I-9, Employment Eligibility Verification form.  The new Form I-9 takes employment eligibility verification out of the realm of paper documentation and provides new electronic enhancements, such as:

  • Drop-down functionality for filling in lists and selecting dates;
  • Prompts on certain fields to ensure information is entered correctly;
  • Additional room to allow for multiple preparers and translators;
  • Embedded instructions for completing each field;
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over;
  • A dedicated area to enter additional information that employers currently have to jot in the margins of the form;
  • A barcode unique to each form to identify it for audit purposes.

Employers may continue to use the current version of the Form I-9 (the one with a revision date of 3/8/2013N) until January 21, 2017.  After January 21, 2017, all previous version of the Form I-9 will no longer be valid.

These changes, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources professionals. 

Immigration & Employment Verification Fines Drastically Increasing

The U.S. Department of Justice has announced that beginning August 1, 2016 they will increase the penalties for unlawfully employing immigrants, unfair employment practices tied to immigration, and for so-called “paperwork violations” on Forms I-9.

The new rule will enhance Form I-9 paperwork violations from a maximum of $1,100 to $2,156 per violation, and a minimum from $110 to $216.  The minimum penalty for employing undocumented individuals will increase from $375 to $539, while the maximum will go from $3,200 to $4,313.  Employers with multiple violations will face a new maximum penalty of $21,563 for unlawfully employing immigrants.  For unfair immigration-related employment practices, a first fine could cost as much as $3,563 per person discriminated against.

These new penalties will take effect on August 1st and apply to all violations that took place after November 2, 2015.