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Posts Tagged ‘USCIS’

A Contradiction In Terms – Recent Developments On 3rd Party Placement Of STEM Opt Students

Posted on: July 13th, 2018

By: Kenneth Levine

In April 2018, USCIS issued official guidance that precluded the assigning of a U.S. employer’s STEM OPT employees to off-site third-party locations.  A STEM OPT employee is a foreign national who is pursing “practical training” through a U.S. employer after having received a degree from a U.S. college/university in a science, technology, engineering or mathematics program.  This development was viewed as especially detrimental to IT consulting companies, whose business model is largely predicated on providing IT services to 3rd party client sites.   These client sites have always served as a fundamental training ground for recent graduates of information technology programs.

In issuing the April guidance, USCIS appears to have blatantly disregarded conflicting guidance that remains in effect.  3rd party placement of STEM OPT employees by staffing agencies is clearly permitted in the preamble to the STEM OPT regulation (8 CFR 214.16 and 81 FR 13040, 3/11/16) and ICE’s “Frequently Asked Questions and Answers” document.

The ICE FAQ addresses this issue as follows:

STEM OPT students are permitted to use staffing/placement agencies to find a training opportunity. However: … [a]ll STEM OPT regulatory requirements must be maintained, and … [t]he staffing/placement agency cannot complete and sign the Form I-983 as an employer, unless … the staffing/placement agency is an E-verified employer of the student, and … [t]he staffing/placement agency provides and oversees the training.

FMG Immigration Attorneys have received recent independent verification from colleagues that H-1B petitions are being approved where USCIS sought to challenge eligibility for the visa based on 3rd party placement of the OPT STEM employee.   Accordingly, so long as it can be demonstrated that each element of the above referenced ICE guidance for 3rd party placement (including full compliance with the I-983 training program) have been satisfied, then there is no reason for staffing companies to discontinue this practice.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

DOJ and USCIS Join Forces Creating a Tougher Road for Employers

Posted on: May 18th, 2018

By: Layli Eskandari Deal

On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) and Department of Justice (DOJ) entered into a Memorandum of Understanding regarding information sharing and case referrals.  USCIS and DOJ state that this effort is meant to improve the way the agencies share information and collaborate on cases “to better detect and eliminate fraud, abuse and discrimination by employers bringing foreign workers to the United States.”  The Memo allows the agencies to share information and help “identify, investigate and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws.”

This Memo has been entered into by the agencies in the spirit of “Buy American and Hire American” Executive Order issued by President Trump.  This new collaboration most likely will lead to more audits, site inspections and requests for evidence and create a difficult path for foreign workers and their employers.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Foreign Students and Exchange Visitors Beware!

Posted on: May 15th, 2018

By: Layli Eskandari Deal

On May 10, 2018, USCIS published a Policy Memorandum to provide guidance on how the agency will be calculating unlawful presence for F-1, J-1, and M-1 nonimmigrant visa holders and their dependents.

Generally, foreign students and exchange visitors are admitted to the United States for “Duration of Status”.  This means that the student or the exchange visitor is admitted to the United States for as long as the individual is still doing the activity for which the visa was issued.  For nonimmigrant (F-1 and M-1) this is generally for the duration of time that they are full time students plus the time they are in their period of authorized practical training.  The length of time generally depends on their course of study.  For Exchange Visitors (J-1) this is the period of time for their program to be completed.  Previously, unless USCIS or an Immigration Judge affirmatively terminated the status, F-1, M-1 and J-1 visa holders and their dependents would not accrue unlawful presence in the United States.

USCIS is now providing the following guidance, which is a significant change in how USCIS has treated “Duration of Status” in the past:

Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for the 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; 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).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence 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; 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).

Accruing unlawful presence can prevent an individual from being able obtain a change of status to another visa category while in the United States or obtaining a new visa at a US Embassy or Consulate.  It can also prevent an individual from obtaining US Residency (green card).  It is very important that international students and exchange visitors understand this new guidance and confer with their immigration attorney regarding any questions.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

What Should I Do If The Government Invites Our Company To Participate In A Program?

Posted on: April 25th, 2018

By: Kenneth S. Levine

The FMG Immigration Section was recently asked to address a client’s question on how they should respond to an emailed “invitation” by the USCIS E-Verify Unit for their company to participate in a quality control program.  First, it is extremely important for clients to be aware that USCIS or ICE agency inquiries/requests are typically not sent by email.  This email turned out to be an exception.

Once we confirmed that the email was in fact legitimate, our focus shifted to the nature of the actual invitation.  In this case, the USCIS E-Verify Unit was inviting our client to participate in a quality control initiative meant to refine and improve the E-Verify system.  The invitation mentioned that participation was not mandatory, and that if our client decided to participate USCIS would then provide a list of corporate documentation to submit.

We advised our client to send a response confirming that the email had been received and that they’ve elected not to participate.  I have yet to run across any situation where it would be advisable for a company to willingly provide internal corporate documents based on nothing more than a government invitation. In fact, a standard rule of thumb is that a company should never provide internal records to a government agency absent a legal obligation to do so.

In the email USCIS sought to characterize their invitation as inconsequential and nothing to be concerned about.  However, the simple act of handing over records to USCIS could easily prompt an investigation if document errors/violations are discovered during the agency’s review.  While it is reasonable to assume that the government would be less aggressive or punitive under these circumstances, there are no guarantees.

Government emails soliciting companies to voluntarily submit their documentation for “quality control purposes” is a new and novel concept.   This type of invitation should always be turned down.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

H-1B Visa Lottery: More Than One Ticket to the Jackpot?

Posted on: April 5th, 2018

By: Layli Eskandari Deal

The answer is No.  U.S. Citizenship & Immigration Services (USCIS) has adopted a ruling made by the Administrative Appeals Office (AAO) to prohibit multiple H-1B visa request by related entities on behalf of the same beneficiary for the same fiscal year.

Under the H-1B visa cap, employers are only allowed to submit one visa petition on behalf of a beneficiary.  Multiple filings are prohibited. The underlying case arose from USCIS revoking an approved visa petition reasoning that that the employer and a “related entity” had filed for the same beneficiary under the visa cap.

Matter of S-, Inc. (AAO March 23, 2018) clarifies that that the term “related entities” includes “employers, whether or not related through corporate ownership and control, that file cap-subject H-1B visa petitions for the same beneficiary for substantially the same job.  Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, U.S. Citizenship & Immigration Services will deny or revoke the approval of all H-1B cap-subject petitions filed by related entities for that beneficiary.”

In making its decision, the Administrative Appeals Office points to regulation and ultimately fairness in the visa number allocation process.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].