Immigration Law Update
I-9 Audits by ICE Increase by 60% with Even Greater Increases Looming in the Future
According to a recent Associated Press article, Immigration and Customs Enforcement (ICE) has dramatically increased the rate of I-9 audits since the start of the current fiscal year. From October to early May, the agency opened 2,282 audits, which is an increase of approximately 60% over the prior fiscal year. Derek Benner, head of ICE’s Homeland Security Investigations Unit, stated that the agency has plans to create an Employer Compliance Inspection Center, centralizing audit inspection efforts, and targeting as many as 15,000 audits per year as the agency’s goal.
Your firm should have a plan in the event of an I-9 audit from ICE. Please contact Karen Moss or Brad Ortman to ensure your company’s employment verification policies stand up to scrutiny.
H-1B Cap-Subject Petitions Update
USCIS recently announced that it has completed the data entry for all randomly selected H-1B cap-subject petitions for the 2019 fiscal year. Those petitions that were not selected will be returned to the petitioner. Also, some H-1B cap subject petitions may be transferred between the Vermont Service Center and the California Service Center to ensure a more balanced distribution of the unselected cases. In this case a notification will be sent to the petitioner along with a receipt notice.
Consequences of F-1 Student and J-1 Exchange Visitor Status Violations Increase as a Result of USCIS Policy Change
This month USCIS announced plans to change how it calculates “unlawful presence” for F-1 and M-1 students and J-1 exchange visitors. This policy change will levy much more severe consequences for status violations. In the past, status violations, such as not pursuing a full course of study or engaging in unauthorized employment, did not result in the accrual of unlawful presence until the government discovered the violation. Under the new policy the government will begin to calculate “unlawful presence” from the date the visa holder’s authorized purpose ends (i.e. no longer pursuing a full course of study) or the date that they engage in unauthorized activity (i.e. unauthorized employment). This is significant, because one who accrues more than 180 days of unlawful presence is barred from the United States for three years. If the amount of unlawful presence exceeds a year, there is a ten-year bar. The new policy goes into effect August 9, 2018.
This is yet another manifestation of the Trump Administration’s effort to increase immigration enforcement, focusing on people who overstay their visas or otherwise violate their nonimmigrant status. In support of this initiative, the government estimates that as many as half of the undocumented immigrants in the United States are visa overstays. Of that amount, the highest rate of overstays, 2.8%, occur among students and exchange visitors according to the Department of Homeland Security.
Nevertheless, the consequences of this change are rather draconian. Educators have raised concern that it will unduly punish foreign students suffering through difficult life events, such as family emergencies and mental health challenges. While their domestic counterparts would receive support through these events, international students could face severe immigration consequences.
USCIS Issues Guidance to Prohibit STEM OPT Placements at Third-Party Worksites
USCIS recently updated language on its STEM OPT webpage to expressly prohibit F-1 STEM OPT employees from being placed at third-party client sites. The rationale behind this change is that U.S. Immigration and Customs Enforcement (ICE) must have access to the worksite where the OPT employee works in order to ensure employer compliance. When the OPT employee is working at the site of the employer’s clients, ICE would lack authority to visit the site.
This policy change was issued in a very unconventional manner. It was not issued through a formal policy memorandum or regulation, and it was issued by USCIS when a different agency, ICE, has the authority to inspect and enforce the Student and Exchange Visitor Program (SEVP). This has raised a genuine question about the ultimate legal effect of this website posting.
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If you have questions concerning your company’s handling of its I-9 obligations or any of the other items above, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper, (216) 621-7227.
Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC
This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.
Copyright 2018 by Nicola, Gudbranson & Cooper LLC