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Posts Tagged ‘USCIS’

USCIS Reverses Course – STEM OPT Students May Now Work At 3rd Party Client Sites

Posted on: September 18th, 2018

By: Ken Levine

On August 17th U.S. Citizenship and Immigration Services (USCIS) posted an announcement on their website to publicize the agency’s decision to once again allow STEM OPT F-1 students to engage in training programs at a third-party client worksite.  This update supersedes the Agency’s policy change in April 2018 which disallowed STEM OPT students from being placed at 3rd party client sites.

This new guidance essentially restored an employer’s ability to place OPT students in a science, technology, mathematics or engineering (STEM) field at a 3rd party client site, so long as all applicable training obligations are met, and a bona fide employer/employee relationship is maintained for the full duration of the assignment.

This USCIS policy reversal was welcome news for the many U.S. employers who had historically trained their OPT personnel by placing them at 3rd party work sites.  However, it is extremely important that employers be vigilant in ensuring that the training is in full compliance with the I-983 training program. Companies that sponsor their OPT employees for an H-1B visa should expect that USCIS will closely scrutinize the OPT training program details.

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

USCIS Creates Another Roadblock for Legal Immigrants

Posted on: August 8th, 2018

By: Kenneth Levine

A proposed Trump administration change to the “public charge” regulations, expected to be issued within the next few months, will dramatically alter the process for how Immigration Officers determine eligibility for citizenship or permanent residency.  USCIS designates an applicant as a “public charge” if they are likely to become predominantly dependent on government benefits for long term survival.  Currently, USCIS Officers focus on the petitioning sponsor’s income (or a cosponsor’s income if the petitioner’s income falls below the required amount) in assessing eligibility.  Section 212(a)(4) of the Immigration and Nationality Act currently allows USCIS to deem a permanent residency applicant ineligible if they are likely at any time to become a “public charge.” Although the current regulation appears to afford an Immigration Officer considerable discretion in assessing an Applicant’s public charge prospects, in practice there is virtually no discretion.  In other words, if the petitioner or the co-sponsor’s current income satisfies the affidavit of support, then USCIS will typically have no justifiable basis to deny an application on public charge grounds.

The new regulations would substantially redefine “public charge” criteria by creating new grounds of ineligibility if the foreign national (or immediate family members) ever obtained health insurance through the Affordable Care Act (ACA) or signed up for supplemental assistance programs for financial and/or nutritional assistance for their U.S. citizen children.  Moving forward, USCIS Officers will be allowed to analyze a foreign national applicant’s income, employment history, job skills, health status, assets, and any family history of having received public health benefits (no matter if they were legally entitled to receive such benefits).  This new approach will dramatically expand USCIS authority to deny a case based on the arbitrary whims of an Officer who looks unfavorably on an applicant’s job history or the amount of money they have saved in the bank.

At this point it is unknown whether there will be different public charge standards for permanent residency or citizenship applicants.  Regardless, FMG Immigration Attorneys fully expect that federal litigation will ensue once USCIS attempts to implement the new public charge regulations.

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].

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].