On July 31, 2018, the Department of Justice (DOJ) and the Department of Labor (DOL) signed an agreement that sets guidelines for inter-agency collaboration to combat suspected employer non-compliance with immigration laws. The agencies have agreed to share resources, including records, and education and training where necessary, and refer cases to one another when an agency learns of employer non-compliance. Continue Reading DOJ and DOL Combine Forces to Combat Employment Discrimination Against U.S. Workers
In May 2018, the United States Citizenship and Immigration Services (USCIS) made two changes affecting foreign students – (1) calculating unlawful presence for students in the U.S. and (2) third-party placements for STEM OPT students.
Calculating Unlawful Presence
“Unlawful presence” in the U.S. is defined as being present in the U.S. after the expiration of a period of stay or any presence without being admitted or paroled into the U.S. However, different rules govern what counts as “unlawful presence.” Recently, USCIS updated its policy on how unlawful presence is calculated for individuals in F (student), J (exchange visitor), and M (vocational student) status. Generally, an individual who “was unlawfully present in the United States for a period of more than 180 days but less than 365 days” may be barred from re-entry for three years; and if an individual has overstayed for more than 365 days, then a ten year bar to re-entry applies. See INA 212(a)(9). In a Policy Memorandum dated May 10, 2018, USCIS set out new rules for calculating unlawful presence for individuals in F, J, and M status. Under the former rule, a student in the U.S. would begin to accrue unlawful presence only after USCIS or an immigration judge made a formal finding of a violation of status, whichever came first. However, under the new rule effective August 9, 2018, unlawful presence is calculated as follows:
F, J, or M individuals who failed to maintain their status before August 9, 2018 will start accruing unlawful presence on August 9, 2018, unless such individual has already started accruing unlawful presence on the earliest of any of the following:
- The day after Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after their I-94 expired, if the individual was admitted for a date certain (versus Duration of Status (D/S)); or
- The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).
F, J, or M individuals will begin to accrue unlawful presence for a failure to maintain status on or after August 9, 2018 on the earliest of any of the following:
- The day after they no longer pursue the course of study or the authorized activity or the day after they engage in an unauthorized activity;
- The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
- The day after the I-94 expires, if the individual was admitted for a date certain (versus D/S); or
- The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).
USCIS seeks to implement this updated policy to lower overstay rates for students and exchange visitors. According to the FY 2016 Entry/Exit Overstay Report published by DHS, “the total overstay rate is 6.19 percent for the F visa category, 11.60 percent for the M visa category, and 3.80 percent for the J visa category.” In FY 2016, DHS calculated nearly 1.5 million students and exchange visitors who were expected to change status or depart the U.S.
Restricting Third-Party Placement for STEM OPT
The second policy change is with regard to third-party placements for STEM OPT students. F-1 students may engage in a twelve-month optional practical training (OPT) after completing their studies. Students who receive a science, technology, engineering, or mathematics (STEM) degrees may apply for a twenty-four month extension to their OPT. So far, no regulations or policy memoranda specifically prohibit STEM OPT students from being placed at third-party sites. However, USCIS updated its website to prohibit third-party placements – “a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).” The website requires that training take place on-site exclusively. USCIS’ stated rationale includes the ability of Immigration and Customs Enforcement, the enforcement arm of the DHS, to conduct site-visits to ensure OPT compliance.
It is expected that USCIS will issue a policy memorandum addressing this issue in the near future, as the enforceability of publishing material on the website could be challenged. Therefore, students and employers are well-advised to consult immigration counsel in considering a third-party placement and the associated risks in light of these developments.
Last month, the U.S. Citizenship and Immigration Services published a new version of the I-9 Employment Eligibility Verification Form. The Form I-9 is used by employers to verify the identity and employment authorization of all new hires. The new version of the Form I-9 is identified by a revision date of 07/17/17N and must be used no later than September 18, 2017.
The following minor changes contained in the now current version of the Form I-9 are intended to facilitate completion and reduce errors:
- The Consular Report of Birth Abroad (Form FS-240) is now a valid List C acceptable document.
- The prior certifications of report of birth issued by the U.S. Department of State (Form FS-545, Form DS-1350 and Form FS-240) are now consolidated in List C.
- All List C documents with the exception of the Social Security Card have been renumbered.
- The U.S. Department of Justice, through its Immigrant and Employee Rights (IER) Section enforces the anti-discrimination provisions of the Immigration and Nationality Act. The Form I-9 instructions now reference the IER rather than the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
The changes are also reflected in the most current version of the Handbook for Employers – Guidance for Completing Form I-9 (M-274) which is available online at: https://www.uscis.gov/book/export/html/59502/en.
On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000. Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.
In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”
On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.” The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.
In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place. Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14th motion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.
The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.
The U.S. Citizenship and Immigration Services recently announced that it redesigned the Permanent Resident Card (“Green Card”) and the Employment Authorization Document (“EAD”) as part of its Next Generation Secure Identification Document Program. The redesigned credentials utilize enhanced graphics and contain fraud-resistant security features to enhance document security and deter counterfeiting.
The new Green Card and EAD will now display the individual’s photo on both sides of the credential; contain unique graphics and color palates; include embedded holographic images, and no longer reflect the individual’s signature. The new Green Card will contain an image of the Statute of Liberty and will be predominately green, while the EAD will contain an image of a bald eagle and be predominately red.
The U.S. Citizenship and Immigration Services began issuing the new Green Card and EAD on May 1, 2107, but will continue to use existing card stock until current supplies are depleted. Note that both existing and new credentials remain valid until the expiration of the date stated on the individual Green Card or EAD and both are acceptable for Form I-9, Employment Eligibility Verification and Systematic Alien Verification for Entitlement purposes.