Foreign Students Will Face New Threats

 DHS’s Fall 2017 regulatory agenda proposed “comprehensive reform” to practical training programs, which allow foreign students to obtain paid work after graduation – a pathway that often leads to H-1B and green card sponsorship by a U.S. employer.  Although no final rule has yet been published, ICE is still expected to end an Obama-era provision that extended practical training from one to three years for graduates in STEM fields who work for employers enrolled in E-Verify. ICE may also be looking at ways to restrict the standard one-year work permit that all students are eligible for, regardless of academic field.

In addition, USCIS’s August 2018 policy memorandum, “Accrual of Unlawful Presence and F, J and M Nonimmigrants,” will continue to adversely affect many students and may increase the number of students who become ineligible to return to the United States for three- or ten-year periods. Because foreign students occupy one of the most rule‑bound U.S. visa categories and depend on school staff to communicate what is permitted and what is not, unwitting lapses are common. Under the new policy, an officer of DHS (which includes ICE, CBP and USCIS) can retroactively determine that a student began accruing unlawful presence on the day they first failed to maintain status. If unlawful presence reaches 180 days, the three-year bar is triggered when the student leaves; a year of unlawful presence triggers the ten-year bar. This is a radical change in practice for students, who have always been admitted not until a fixed expiration date, as others are, but instead for “duration of status,” to more easily allow for changes in their academic programs. Until the August 2018 memo, students did not accrue unlawful presence unless a formal finding was made by USCIS terminating their status. Now, in addition to clarifying that both ICE and CBP can determine when unlawful presence begins, DHS also intends, according to its Fall 2018 regulatory agenda, to establish a maximum period of authorized stay for nonimmigrant students, eliminating “duration of status” benefits altogether.

Compliance and Enforcement Actions Will Broaden

Last year, we predicted that on-site visits by government inspectors to H‑1B and L-1 workplaces would increase and could expand to other visa categories.  We relayed accounts by our clients of site visits for employees on blanket L-1 visas and predicted increased surveillance and inspection in that category. In 2018, ICE initiated more than 6,800 worksite enforcement investigations and almost 6,000 I-9 audits, a four- and five-fold increase from 2017, respectively. We expect to see this trend continue in 2019 in all industries.

USCIS has also ramped up enforcement by focusing resources on its Fraud Detection and National Security Directorate (“FDNS”), which conducts administrative investigations of fraud in the context of petitions and applications to USCIS for immigration benefits. According to the USCIS Ombudsman’s June 2018 Annual Report to Congress, in Fiscal Year 2018, FDNS’s staffing levels doubled over FY2012 (from about 750 to more than 1,500), and its approach became more “risk-based,” using fraud criteria to target certain employers. Often, when a case is long past posted processing times, or a status message indicates the case is being held “in abeyance,” it is because FDNS is conducting a heightened background investigation. These can encompass government databases, open source information, physical site visits, written Requests for Evidence, and overseas verifications of foreign records. In 2019, we may see FDNS investigations and heightened background investigations lead to USCIS issuing a higher volume of Notices to Appear (“NTAs”), which initiate removal proceedings against an individual. It remains unclear whether USCIS will prosecute these cases through its own attorneys or, instead, will continue to rely on ICE to represent the government in immigration court. If USCIS has the resources to issue and prosecute NTAs, we may see even longer backlogs in already overloaded immigration court dockets.

We also expect a continued push by the government to make E-Verify mandatory for all U.S. employers. The E-Verify system now has the capacity to check driver’s licenses against databases in all fifty states, the District of Columbia, and Puerto Rico.  This is intended to reduce the number of fraudulent licenses that are presented for identity verification; however, E-Verify cannot determine whether the license actually belongs to a specific individual or compare the picture on the license to the individual.

Enforcement actions we expect to see throughout 2019 go beyond worksite I-9 compliance and E‑Verify. For example, with 2019 only one month old, we have already blogged about a sting operation in which ICE ran a fake university to target recruiters and students who may have knowingly registered despite the lack of instructors and classrooms, in order to obtain work authorization. We can expect to see continued enforcement actions aimed at student visa abuse and other forms of potential immigration fraud throughout the year.

 Public Charge Findings Will Contribute to Decreased Immigration

Individuals who are a “public charge” cannot support themselves through employment, assets or the help of family and friends, resulting in dependency on government benefits and assistance programs. Except for humanitarian categories (refugees, asylees, victims of crime, etc.), current law prevents immigrants from using major federal means-tested benefits for at least five years after gaining lawful permanent resident status; hence, they must be sponsored by an employer or by a family member who meets certain income requirements.  In October 2018, USCIS proposed a rule to greatly expand the benefits that would make someone a public charge, sweeping in many that have historically been exempt, including nutrition assistance from food stamps or the WIC program, health insurance through Medicaid, and housing help through Section 8 vouchers. In addition, the final rule would apply not only to individuals who are immigrating permanently to the United States, but also to those who seek only temporary admission or a temporary extension or change of their nonimmigrant status.  USCIS received more than 200,000 comments on the proposed rule, a daunting number that will take time to review and analyze.  However, because public charge has been a top priority for this Administration, we are likely to see a final regulation in 2019.  It is also likely that we will see litigation after the final rule is published, as it seems geared toward deterring and reducing legal immigration rather than truly examining the likelihood that immigrants will actually become a public charge.

During the government shutdown, lasting from December 22, 2018 through January 25, 2019, employers were required to complete and retain Form I-9, Eligibility Employment Verification, for each individual hired during the shutdown, even though E-Verify services were unavailable. However, it was recently announced that E-Verify resumed operations on January 28, 2019 and participating employers have until February 11, 2019 to create an E-Verify case for all new hires during the government shutdown, using the hire date on the employee’s I-9. Employers should be prepared for longer than expected processing times due to the length of the government shutdown and the accumulation of cases now entering the E-Verify system.

In situations where the E-Verify case creation is more than three working days after the date of hire, USCIS instructs employers to select the “Other” option from the drop-down list and enter “E-Verify Not Available.” If the data entered does not match government records and a Tentative Nonconfirmation (TNC) results, any employer on notice of an employee’s intention to contest the TNC by February 11, 2019, must revise the date for employees to begin resolution of the TNC by adding ten federal business days to the date on the employee’s “Referral Date Confirmation” notice.  This only applies to TNC referrals impacted by the government shutdown.  TNC referrals after E-Verify resumed operations do not receive the additional ten days to contest.

Employers should pay close attention to the dates noted above to ensure compliance with E-Verify requirements. If you need assistance with E-Verify and other compliance-related issues, please contact us.

Natalie Tynan is a former DHS lawyer who focuses on immigration compliance and related issues.

A year ago, we blogged about the changes we saw coming in 2018 for U.S. employers and their employees under the April 2017 Buy American / Hire American executive order.  Though widespread across visa and green card categories, those changes have all amounted to increasing obstacles for U.S. companies to hire, retain and sponsor foreign nationals.  H‑1B workers, their H‑4 spouses, F‑1 students, TN professionals under NAFTA (to be replaced by the United States-Mexico-Canada Agreement, once approved by Congress), and L‑1 managers and specialists who transfer into U.S. companies from related foreign entities – all of these workers, as well as their employers, have been frustrated by dramatically increased processing times, new restrictions on expedited processing, questionable challenges to eligibility, often spurious denials, and generalized errors and oversights by federal immigration agencies.  Unfortunately, we expect these trends to continue, and other non-business-friendly changes are also on the horizon.

H-1B Workers Remain in the Cross-Hairs

In Fall 2017, the Department of Homeland Security proposed a new regulation that would do away with its long-standing H-1B lottery system. Over the years, as demand has grown, while congressionally allocated H-1B numbers have remained static, the annual filing period has shrunk to the first five business days of April, and the odds of being selected in the annual lottery have dropped to below 40 percent.  On January 31, 2019, as we previously discussed, DHS announced the final rule, which simultaneously:  (a) requires employers to pre-register the workers they wish to sponsor and submit petitions only if they are notified that they have been randomly selected to do so; (b) suspends the pre-registration requirement until Fiscal Year 2021; and (c) increases the odds that workers who have advanced U.S. degrees will be selected in the lottery this year and in the future.  The last provision appears to implement Buy/Hire American’s mandate to “ensure that H-1B visas are awarded to the most-skilled or highest-paid.”  However, as reported in the Wall Street Journal, court challenges to the new rule are likely, and with only eight weeks to go before the lottery window opens, any injunctions could disrupt H-1B filing season this year.

EB-1 Worldwide Waiting List Remains Backlogged

As subscribers to our blog were informed last fall, a surprising backlog developed in summer 2018 in the Employment-Based First Preference green card category.  The “EB-1” classification, which includes Outstanding Professors/Researchers, Multinational Managers/Executives, and Aliens of Extraordinary Ability in various fields, is exempt from the usual requirement that an employer prove no qualified U.S. worker is available before sponsoring a foreign national – a preliminary step that often adds a year or more to the overall green card process.  In addition, EB-1 demand has been historically low, even for Indian and Chinese workers, in comparison to other categories that have years-long waiting lists.  For these reasons, EB-1 sponsorship has traditionally been a much faster path to a green card for the lucky few who qualify.  This long-standing state of affairs abruptly changed in August 2018, when a waiting list of more than six years suddenly developed in the EB-1 category for Indians and Chinese and more than two years for all other nationalities.  Although the backlogs were expected to vanish in October, when annual allocations were refreshed at the start of Fiscal Year 2019, a wait list of more than a year has persisted for all countries.  As we explained in our Law360 article in December 2018, EB-1 backlogs may well be the “new normal” for a combination of technical and political reasons.  By regulation, if supply exceeds demand in the EB-4 and EB-5 categories – which include Religious Workers, Special Immigrant Juveniles, International Broadcasters, Panama Canal Zone Employees, Afghan/Iraqi Translators, and Immigrant Investors – those extra green card numbers are allocated to the EB-1 category.  Until last summer, a large “spill over” of this kind occurred every year without fail, keeping the EB-1 category current, or causing only brief interludes late in the year, when green cards were not available for Chinese and Indian nationals.  With a twelve-fold increase since 2010 in EB-4 Special Immigrant Juvenile filings, due to the surge in unaccompanied minors arriving from Central America, and a five-fold increase in EB-5 Immigrant Investors, we anticipate that the EB-1 category will remain retrogressed for the foreseeable future.

H-4 Work Permits Remain in Jeopardy

A year ago, we predicted that the Trump Administration’s threat to eliminate work permits for the spouses of H-1B workers would likely come to pass in 2018. This has not yet occurred, probably because the Administration has had bigger fish to fry, with unprecedented numbers of asylum seekers at the southern border, the resulting family separation crisis, and associated lawsuits.  Nonetheless, this item remains a priority on DHS’s Fall 2018 regulatory agenda.  We anticipate the agency will publish a proposed rule this year and lawsuits will follow.

DACA and TPS Lawsuits Continue

As has been widely reported in the mainstream media, President Trump has ended numerous humanitarian programs, including the Obama Administration’s Deferred Action for Childhood Arrivals (“DACA”), as well as Temporary Protected Status for nine nationalities, including several TPS programs that were established more than twenty years ago. As a result of lawsuits filed in multiple states, the government is temporarily enjoined from implementing these actions.  Although first-time applicants may not file for DACA at this time, DHS must continue to accept renewal applications.  However, since DACA work permits are not eligible for the automatic 180-day extension that other work permit categories enjoy, and since USCIS processing time for renewals varies from five months to more than two years at the regional service centers that handle them, DACA workers and their employers continue to face substantial disruptions.

Similarly, the government is prohibited from carrying out TPS terminations while three federal lawsuits move through the courts. Two of those lawsuits challenge terminations for El Salvador, Honduras and Haiti; the third seeks protection for TPS beneficiaries of any nationality who have U.S. citizen children.  Until the injunctions are lifted or the lawsuits resolved, TPS renewals may continue to be filed, and these workers do benefit from the 180-day automatic extension.

Please subscribe to our blog and stay tuned for the second installment of our 2019 forecast, which will cover the F-1 student visa category, worksite visits and other compliance and enforcement actions, and the impact of changes to the “public charge” rules.

In a continuation of U.S. Immigration and Customs Enforcement (“ICE”)’s crackdown on fraud among the foreign student population, ICE established and ran “The University of Farmington” in the Detroit suburbs.  As a result, the government indicted eight individuals for conspiracy to commit visa fraud and harboring aliens for profit.  At least 600 foreign nationals obtained fraudulent student visas through ICE’s undercover operation, which had no instructors or classes that would enable students to pursue a course of study.  Recruiters actively identified and helped enroll foreign nationals into the “university” and helped them obtain documentation that was required in order to seek work authorization from U.S. Citizenship and Immigration Services (“USCIS”).  Students who enrolled in the “university” also face potential civil and criminal penalties if the government can prove they knew they would not attend classes or pursue a course of study.

Continue Reading Another Fake University – U.S. Immigration and Customs Enforcement Stings Again

The Department of Homeland Security (“DHS”) announced today that the final rule amending DHS regulations governing H-1B cap-subject petitions will be published in the Federal Register on January 31, 2019, and will become effective on April 1, 2019.

The new rule implements the electronic registration requirement, but suspends it for the FY2020 H-1B cap season. The rule also reverses the order in which the United States Citizenship and Immigration Services (“USCIS”) will select cap subject H-1B petitions.  USCIS will first select, in a random lottery, a sufficient number of H‑1B registrations (or petitions when the registration requirement is suspended) submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption, to meet the H-1B cap.  USCIS will then select from the remaining registrations (or petitions), also in a random lottery, a sufficient number of H-1B petitions to meet the advanced degree exemption.

For a more detailed discussion on how this new rule changes the selection process for H-1B cap-subject petitions, please see our prior post.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the February Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 moves forward two months to February 8, 2017, EB-2 advances two months to October 1, 2015, and EB-3 advances three weeks to July 1, 2015
  • India: EB-1 advances two months to February 8, 2017, EB-2 creeps forward five days to April 6, 2009, and EB-3 leaps seven weeks to April 22, 2009, outpacing EB-2 for the first time ever.
  • Philippines: EB-1 advances two months to December 1, 2017, EB-2 remains current, and EB-3 moves forward five weeks to August 1, 2017
  • All Other Countries: EB-1 remains backlogged, but moves forward two months to December 1, 2017, EB-2 and EB-3 remain current

NOTE: USCIS has not yet announced if they will accept I-485 applications in February based on the Department of State’s Dates for Filing chart.

Hunton Andrews Kurth LLP is pleased to announce the addition of Natalie Tynan to its national labor and employment practice. Tynan joins the firm’s immigration group as a senior attorney in Washington.

Tynan joins the firm after more than eleven years with the US Department of Homeland Security. She has served in various roles, including special assistant with the U.S. Citizenship and Immigration Service’s Office of Policy and Strategy, where she was responsible for implementing executive orders and agency programs, and as chief of adjudications for USCIS Service Center Operations.

Most recently, she was unit chief of policy at Immigration and Customs Enforcement, where she served as a member of the management team responsible for coordinating legal, policy and operational activities. She brings extensive knowledge of immigration topics such as worksite enforcement, adjudication of petitions and applications, government investigations, detention, implementation of executive orders, and drafting and implementation of regulations.

“Natalie’s insight and understanding of the complexities of DHS’s immigration programs adds to the depth of our capabilities,” said Adam J. Rosser, a partner with the firm’s immigration group. “Her background will allow her to play a key role to broaden our immigration compliance capabilities, and to navigate an increasingly restrictive and unpredictable adjudicatory environment.”

Hunton Andrews Kurth’s immigration practice handles all immigration needs for corporate clients, from sponsorship of key employees for temporary visas and permanent residence, to I-9 compliance advice, government investigations and due diligence. The team of experienced immigration lawyers represents multinational organizations across various industries including manufacturing, pharmaceuticals, medical devices, banking, nonprofits, communications and entertainment.

In August 2017, rumors began circulating that U.S. Citizenship and Immigration Services was denying applications for advance parole if the applicant had departed the US before the application was approved.

Soon after these reports surfaced, USCIS officially confirmed the change, which was implemented without formal announcement or advance notice of any kind.  Since then, USCIS has indiscriminately applied the policy, including to those who traveled with their existing valid advance paroles (for example, while their renewals were pending) or on valid “dual intent” visas, such as H and L.

H and L workers have historically traveled freely and without adverse impact after filing both advance parole and adjustment applications, while others – such as those on E, O, P, and TN visas – are held to a “non-immigrant” intent standard and must wait for advance parole before traveling.

This week, USCIS revised its advance parole policy yet again, this time by adding “Special Instructions” to its website, Application for Travel Document | USCIS, which read as follows:

If you file Form I-131 … to request an advance parole document and depart the United States without possession of an advance parole document that is valid for the entire time you are abroad, your Form I-131 will be considered abandoned.  At times, an individual may have an approved advance parole document while a second one is pending.  [Those] individuals may travel … provided the document is valid for the entire duration of the time abroad.  The pending Form I-131 will not be considered abandoned in this situation.

Since these “Special Instructions” do not exempt “dual intent” nonimmigrants, H and L workers should expect continuing denials of their advance parole applications unless they hold existing parole valid for the entire duration of their foreign trips.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the January Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 advances three and a half months to December 15, 2016, EB-2 creeps ahead one month to August 1, 2015, and EB-3 stalls at June 8, 2015
  • India: EB-1 also advances three and a half months to December 15, 2016, EB-2 freezes at April 1, 2009, and EB-3 remains March 1, 2009
  • Philippines: EB-1 advances three months to October 1, 2017, EB-2 remains current, and EB-3 moves forward another week, advancing to June 22, 2017
  • All Other Countries: EB-1 remains backlogged, but advances three months to October 1, 2017, EB-2 and EB-3-remain current

NOTE: USCIS has announced that it will accept I-485 applications in January based on the Department of State’s Dates for Filing chart.