F-1 Students – Be Careful.

There are many pitfalls for those in F-1 status.  Some of which I have talked about before.  I want to discuss two potential pitfalls that have been in the news recently: The creation of a fake University by ICE to ensnare F-1 violators; and, Day 1 CPT.

First, several years ago (it actually started under the Obama administration), ICE began setting up fake Universities. Because they were a Government Organization, they were able to get fake certifications and able to have them added to the SEVIS database and began enrolling students.  Students who enrolled quickly realized there were no real classes, no real campus, no teacher, etc.  While it was impossible to realize this before enrolling, ICE moved to deport all students who attended the University, even those who, after realizing that it was fake, transferred out within a short period of time.  While it is hard to defend those who did not look into the university’s workings or question the fact that there were no courses, etc., and who were subsequently deported for violating student status, it is different for those who transferred out in a relatively short period of time.  Some students contacted the administration multiple times trying to get answers about when and where classes would meet, etc. Then, they took the time to transfer elsewhere, at great expense to themselves.  Yet, ICE did not care if you were diligent and tried to figure it out, they tried to deport ALL students who attended the fake school, no matter what. ICE argues that they should have known that it was fraudulent.  Clearly, it would be best if you made sure to look into any University you are going to attend – make sure there is a full curriculum listed on the website, with courses and teachers listed.  Make sure all accreditations are accurate and legitimate.  Do not attend a University that is being heavily promoted by recruiters (this is how ICE could get most students to attend).  In closing, be careful.  For more information on this, see this article.

The second issue is schools that offer Day 1 Curricular Practical Training.  Curricular Practical Training is a way for students to get experience for a legitimate school program that requires such work as an integral part of the Curriculum.  There are plenty of such specialized schools.  However, many schools also allow students to use CPT from Day 1, even though it is not really an integral part of the program. Instead, it is a way for the schools to make money because there are so many F-1 students who applied for H-1Bs and were not selected but still want to work for their employers.  These schools allow students to enroll in programs related to their employment and past degree and then work in CPT part-time for their previous employer from Day 1.  Such use of CPT is NOT what it is meant for.  The problem is that USCIS has not been clear in its rules.  While it clearly states that CPT must be an integral part of the program, that is not really defined.  In addition, USCIS does not attach such cases by saying that the CPT was not an integral part of the F-1’s program.  Instead, USCIS tries to re-write its rules.  Currently, the way the CPT and OPT rules are written is that an F-1 is allowed up to 1 year of Practical Training.  The rules then go on to say that if you work 12 months of full-time CPT, then you are not eligible for OPT, which clearly implies that as long as your CPT is part-time OR you work less than 12 months of full-time CPT, then you will get your OPT time, and that is how USCIS usually reads the rule.  However, in select cases, USCIS will revise this rule and look at the 1 year of Practical Training and say that this covers both CPT and OPT, and therefore the student violated their status.  While this can be challenged in Court, that is a time consuming and expensive process.  So for most students caught up in this crusade of USCIS’, they are left with having a change of status or adjustment of status application denied for violating their status. 

F-1 students need to be vigilant in deciding what school and what programs to use to ensure that they are not, rightly or wrongly, determined to be violating their status by USCIS or ICE.  Be careful.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you. 

Biden wants to Roll Back the Immigration Policy changes made by Trump. Will that be possible in his first four years?

There was a recent, very interesting article published by NPR that highlighted the problems that may be faced by the Biden administration (if he wins the election) in rolling back the changes implemented by the Trump administration. You can read the full article here.

While there were several possible barriers raised by the article that could stand in Biden’s way of changing such immigration policies, the biggest, and hardest barrier to break through, in my mind, is the culture that has been created at USCIS, ICE, CBP and other related agencies. According to the article:

“That isn’t something that’s a light switch. You can’t change culture within an organization that vast overnight,” says Angela Kelley, senior adviser to the American Immigration Lawyers Association. “So I agree that it’s going to be a long, long road.” 

CBP produced an ominous, fictionalized video on the Border Patrol’s YouTube channel that depicts a Latino migrant who had just escaped from agents, attacking and knifing a man in a dark alley. The video was released at a time when Trump has been stoking fears about violent immigrants at his campaign rallies. For an example of how the Border Patrol is marching lockstep with the White House, look to a video titled “The Gotaway,” posted earlier this month. 

NPR inquired why the video was made and why it was removed a week later before being re-posted. Border Patrol Chief Rodney Scott said in a statement that the video was produced “to enhance awareness that effective border security helps keep all Americans safe,” and it was briefly pulled because they misused copyrighted materials.

NPR, Morning Edition, September 14, 2020

Changing such a culture will take time. While changing those at the top will help change the policies the officers act under, getting those changes to be implemented by officers, and getting them to change their attitudes will take quite a while, especially at ICE and CBP. USCIS may be somewhat easier to crack as the officers there are not dealing with deportation or apprehending people on a daily basis and are not necessarily as hard lined (although, most likely, some are as well). Changing the policies at USCIS may be enough to allow officers to change the way they adjudicate cases without to much time passing.

Again, according to the article:

“I don’t think it’s realistic that Biden in four years could unroll everything that Trump did,” says Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C. 

“Because of the intense volume and pace of changes the Trump administration enacted while in office, even if we have a new administration, Trump will continue to have had an impact on immigration for years to come,” Pierce says.

NPR, Morning Edition, September 14, 2020

While, overall, it may take a long time to affect all these changes, I do think, that there are some basic policies that could be changed much quicker (in terms of USCIS). First, the requirement of an interview for all cases – that could be changed very quickly. In addition, some of the more hardline looks at H-1Bs could also be changed rather quickly, as could the removal of harmful Executive Orders that limit immigration. So there is a lot that could be done relatively quickly as well.

We must also remember, that, if Biden is able to get Congress on his side as well, and a new immigration law is passed, that could significantly increase the rate at which changes can be made both inside USCIS as well as inside ICE and CBP (if such a law limits their jurisdicition and ability to act inside the law).

Overall, it could take longer for many changes, especially those at the border to be fully put in place. While some changes, those that primiarily are implemented by USCIS, may be able to be implemented earlier. We shall see what happens in November and what happens in January, should there be a change of administration.

How Important is a Complete I-9 Form for Each Employee?

Unknown Everyone is familiar with the I-9 form, and for many employer, it seems unduly burdensome and they treat it as a formality – as long as the person has the right documents, whether the form is fully complete or not doesn’t really matter,. However, according to our law, and, in some ways more importantly, ICE and our Courts, it does matter quite a bit. 8 USC §1324a(a)(1)(B) makes it a violation of law for simply failing to complete the I-9 form fully, regardless if the person you are hiring is actually authorized to work or not, regardless if they area a citizen or an illegal alien. And in case you think that Immigrations and Customs Enforcement, the agency that enforces this through site visits, would allow inconsequential, or small errors slide, here is one case that you may be interested in.

Niche Inc. a company that produced goods for our Department of Defense was audited this year by ICE. ICE found 177 violations of the above statute. Most of the violation were for I-9 forms that were incomplete, but on file, some were for I-9 forms that were completed late, and 1 was for having no I-9 on file. It should be noted that there was NO allegation that any of the workers were not allowed to work, as they all were. The only issue was the lack of complete (or missing) I-9s. ICE determined that the company should pay $888.25 per violation, which came to a total of $157,220.25. Not an inconsiderable amount, especially considering the crime.

The company did appeal this decision to OCAHO (Office of the Chief Administrative Hearing Officer) who is the final arbiter of such disputes. OCAHO lowered the fine to $66,850 ( a fine of $600 for one failure to prepare and I-9, $500 for each of the 11 delayed completions, and $350 per violation for the 165 incomplete forms). They also allowed the company to use a payment schedule. The reasoning for lowering the fee and allowing the payment plan was that Niche was a small company and supported the war effort, and that Niche usually kept documentation and used E-Verify. Based upon the above OCAHO stated the company showed good faith.

images-1What the above shows is that, while the form part of the I-9 process seems redundant or superfluous, it is important to complete the forms fully and on time and to keep records of all such forms i n employee files. Failure to do so could result in large fines. If needed, having someone come in to audit your I-9 files to ensure they are complete, without errors and all required documents are attached can be an economical idea in the long run.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.