Tag: DHS

Form I-9 Requirement COVID-19 Flexibility Extended until August 31

U.S. Immigration and Customs Enforcement (ICE) has announced an extension of its interim policy that allows employers to inspect the Form I-9 requirement virtually through August 31, 2021. This flexibility was first issued by ICE in March 2020, due to the pandemic, and has been extended multiple times since.

COVID-19 Flexibility Extended

Form I-9 flexibility policy was set to expire on May 31, 2021. The policy applies only to employers and workplaces that are operating remotely. If the workplace is functioning even partially at the work location, the employer must implement an in-person verification process. Employers who meet the criteria for remote operation must diligently create cases for their new hires within three business days from the date of hire.

The announcement had no new information apart from that regarding the extension but encouraged employers to monitor the USCIS website for any latest guidance.

Form I-9 Requirement

Form I-9 is a mandatory form that employers must complete and maintain with its records, confirming the employment authorization of individuals hired for employment in the United States. Employers must verify the documents of the new hire within three days of hire, and both employee and employer must complete the form. The list of acceptable documents can be found on the last page of the form.

The Department of Homeland Security (DHS) inspects, either randomly or on tips or complaints, the records the employers maintain. The purpose of the audit is to ensure that the employers are following legal hiring practices. When an employee receives a Notice of Inspection (NOI) from the DHS about an upcoming audit, it is best to hire an attorney and have staff from Human Resources handle the audit. If the DHS finds discrepancies in the records, they issue a warning notice and provide time to correct the violations. If the violations are not rectified, the DHS issues a Notice of Intent to Fine; often the amount of the fine is huge.

©2021 Norris McLaughlin P.A., All Rights Reserved

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.
For more articles on form I-9, visit the NLRImmigration section.

172 Immigrants Arrested in Sanctuary Cities by ICE in Six Days

The Department of Homeland Security (DHS) and United States Immigration Customs and Enforcement (ICE) concluded a targeted enforcement operation, which lasted for a week. The operation resulted in 170+ at-large illegal immigrants arrested throughout the United States in states with sanctuary policies.

About the Immigrants Arrested

ICE officers from the field offices of New York; Seattle; Denver; Philadelphia; Baltimore; and Washington, D.C., conducted the enforcement actions from October 3 through October 9. The arrests were targeted on aliens who have criminal convictions and were arrested but released by state or local law enforcement agencies despite having immigration detainers placed on the immigrants. In a press release, ICE announced that out of the 170+ arrested, more than 80% of the aliens arrested had criminal convictions or pending criminal charges at the time of the arrest.

The immigrants arrested include 54 in New York; 35 in Seattle; 34 in Denver; 26 in Philadelphia; 12 in Baltimore; and 11 in Washington, D.C. Just at the end of September, ICE announced the arrest of 128 aliens in California from where the operation was conducted from September 28 to October 2, as part of immigration enforcement actions. The news released by ICE also had data of the arrested aliens in the fiscal year 2019: ICE arrested more than 1,900 convictions and charges for homicide, 1,800 for kidnapping, 12,000 sex offenses, 5, 000 sexual assaults, 45,000 assaults, 67,000 crimes involving drugs, 10,000 weapons offenses, and 74,000 DUIs.

Acting DHS Secretary Chad F. Wolf said, “Last fiscal year, 86 percent of people arrested by ICE had criminal convictions or pending charges. ICE focuses its resources on those who pose the greatest threat to public safety. The men and women of ICE put their lives on the line every day to keep these individuals off the streets,” He further stated that, “The Department will continue to carry out lawful enforcement actions in order to keep our communities safe, regardless of whether or not we have cooperation from state and local officials. Politics will not come before safety when enforcing the law and keeping our citizens safe.”

Though the arrests made by ICE hints that it primarily targets immigrants with a criminal record, the press release by ICE stated that it does not exempt classes or categories of removable aliens from potential enforcement.

About Sanctuary States

Sanctuary states are states with immigrant-friendly laws, that restrict cooperation with federal immigration authorities. The non-cooperation by the state or local law enforcement agencies acts as an impediment in ICE’s ability to arrest criminal aliens in such communities. It further stated that all those in violation of immigration laws can be subject to arrest, detention, and subsequently removable based on a removal order. Additionally, ICE stated that cooperation with local law enforcement is essential to maintaining public safety.

©2020 Norris McLaughlin P.A., All Rights Reserved
For more articles on ICE, visit the National Law Review Immigration section.

DHS Expands Use of Biometric Data in Immigration

Last week, the Department of Homeland Security (“DHS”) announced plans to expand the use of biometric data in determining family relationships for immigration purposes. A proposed rule with the new protocols for biometrics use is expected to be published soon. This rule is also said to allow more uses of new technology as they become available.

The Use of Biometric Data in Immigration

The proposed rule will give the DHS the authority to require biometrics use for every application, petition, or related immigration matter. The current practice by the United States Citizenship and Immigration Services (USCIS) requires biometrics only for applications that require background checks. This new rule is intended to give the DHS broad authority to use biometrics technology. The DHS can use voiceprints, iris scans, palm prints, and facial photos, as well as additional technologies developed in the future.

“As those technologies become available and can be incorporated as appropriate, it gives the agency the flexibility to utilize them. And then it also would give the agency the authority down the road, as new technologies become available and are reliable, secure, etc., to pivot to using those, as well,” said one USCIS official. And while children under age 14 are now generally exempt from the collection of biometric data, the proposed rule will also remove the age restriction.

DNA can be collected by the agency to verify a genetic relationship where establishing a genetic or familial relationship is a prima facie requirement of receiving an immigration benefit. Though the raw DNA will not be stored by the DHS, the test results will be saved in the immigrant’s Alien file, also known as the “A-file.” The A-file is the official file that the DHS maintains with all of the immigrant’s immigration and naturalization records. Any such information collected may be shared with law enforcement, but there is no procedural change in other agencies gaining access to the A-files.

Reactions From Immigration Leaders

The additional collection of biometric data will not result in an increase in existing filing fees, as the cost is covered under new filing fees set to go effect October 2, 2020. The DHS has emphasized that the biometrics rule is to be given top priority; nevertheless, it will undergo the standard review process.

This proposed rule quickly drew severe criticism from pro-immigration activists. Andrea Flores from the American Civil Liberties Union called it an “unprecedented” collection of personal information from immigrants and U.S. citizens. She said, “collecting a massive database of genetic blueprints won’t make us safer – it will simply make it easier for the government to surveil and target our communities and to bring us closer to a dystopian nightmare.”

DHS Acting Deputy Secretary Ken Cuccinelli welcomed the rule, stating that “leveraging readily available technology to verify the identity of an individual we are screening is responsible governing.” He added that “the collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be.”

©2020 Norris McLaughlin P.A., All Rights Reserved
For more articles on DHS, visit the National Law Review Immigration section.

DHS Rules Effective August 2020 Will Push Asylum Seekers Further into Poverty and Marginalization

In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications.  By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.

The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application.  This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays.  The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.”  But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs.

The second rule change, effective August 25, 2020, severely restricts eligibility for work permits while simultaneously increasing the waiting time for work permits.  This too will have dire consequences for asylum seekers struggling to survive while their asylum applications remain pending.  The new measures mandate the government to:

  1. substantially delay the issuance of work permits by more than doubling the waiting period to apply from 150 days to 365 days;
  2. bar asylum seekers from receiving a work permit if they attempt to enter the United States without inspection on or after August 25, 2020, unless they qualify for very limited exceptions;
  3. deny employment authorization for asylum seekers who file their asylum application after the one-year filing deadline, unless granted an exception;
  4. prohibit employment authorization for applicants who have been convicted of certain crimes or who are “believed” to have committed a serious non-political crime outside the United States;
  5. deny employment authorization applications if the underlying asylum application has experienced “unresolved applicant-caused delays,” such as a request to amend or supplement the asylum application or if the application is being transferred to a different asylum office due to a change in the applicant’s address;
  6. automatically terminate an asylum seeker’s work permit without provision for renewal if an immigration judge denies the asylum case and the applicant does not appeal to the Board of Immigration Appeals (BIA) within 30 days, or if the applicant does appeal but the BIA denies the appeal; and
  7. limit the employment authorization validity period to a maximum of two years.

The effects of these new directives will be devastating. Currently, the inability to work lawfully for at least six months after seeking asylum often leaves applicants homeless, hungry, and without access to health care.  Because federal law does not provide support such as income, housing, or food assistance to asylum applicants, dramatically increasing the waiting period for a work permit will exacerbate the conditions of poverty in which many asylum applicants find themselves.  Without employment authorization, asylum seekers cannot obtain health insurance under the Affordable Care Act, and often cannot apply for a driver’s license or benefit from public assistance programs that offer safe housing and access to food.  Federal law permits states to provide state-funded benefits to asylum seekers, but only about half of the states have extended benefits to that population.   Even when states do provide some public benefits to asylum applicants, it is often only for children, the elderly, or asylum seekers with specific health conditions.

Given these consequences, pro bono attorneys representing asylum seekers who are eligible to apply for a new work permit or to renew an existing work permit now should consider filing employment authorization applications before August 21, when the first of these rules goes into effect.

 

© 2020 Proskauer Rose LLP.

ARTICLE BY Erin M. Meyer and Angela Gichinga at Proskauer Rose LLP.
For more on the topic, see the National Law Review Immigration Law section.

FTC Reports to Congress on Social Media Bots and Deceptive Advertising

The Federal Trade Commission recently sent a report to Congress on the use of social media bots in online advertising (the “Report”).  The Report summarizes the market for bots, discusses how the use of bots in online advertising might constitute a deceptive practice, and outlines the Commission’s past enforcement work and authority in this area, including cases involving automated programs on social media that mimic the activity of real people.

According to one oft-cited estimate, over 37% of all Internet traffic is not human and is instead the work of bots designed for either good or bad purposes.  Legitimate uses for bots vary: crawler bots collect data for search engine optimization or market analysis; monitoring bots analyze website and system health; aggregator bots gather information and news from different sources; and chatbots simulate human conversation to provide automated customer support.

Social media bots are simply bots that run on social media platforms, where they are common and have a wide variety of uses, just as with bots operating elsewhere.  Often shortened to “social bots,” they are generally described in terms of their ability to emulate and influence humans.

The Department of Homeland Security describes them as programs that “can be used on social media platforms to do various useful and malicious tasks while simulating human behavior.”  These programs use artificial intelligence and big data analytics to imitate legitimate activities.

According to the Report, “good” social media bots – which generally do not pretend to be real people – may provide notice of breaking news, alert people to local emergencies, or encourage civic engagement (such as volunteer opportunities).  Malicious ones, the Report states, may be used for harassment or hate speech, or to distribute malware.  In addition, bot creators may be hijacking legitimate accounts or using real people’s personal information.

The Report states that a recent experiment by the NATO Strategic Communications Centre of Excellence concluded that more than 90% of social media bots are used for commercial purposes, some of which may be benign – like chatbots that facilitate company-to-customer relations – while others are illicit, such as when influencers use them to boost their supposed popularity (which correlates with how much money they can command from advertisers) or when online publishers use them to increase the number of clicks an ad receives (which allows them to earn more commissions from advertisers).

Such misuses generate significant ad revenue.

“Bad” social media bots can also be used to distribute commercial spam containing promotional links and facilitate the spread of fake or deceptive online product reviews.

At present, it is cheap and easy to manipulate social media.  Bots have remained attractive for these reasons and because they are still hard for platforms to detect, are available at different levels of functionality and sophistication, and are financially rewarding to buyers and sellers.

Using social bots to generate likes, comments, or subscribers would generally contradict the terms of service of many social media platforms.  Major social media companies have made commitments to better protect their platforms and networks from manipulation, including the misuse of automated bots.  Those companies have since reported on their actions to remove or disable billions of inauthentic accounts.

The online advertising industry has also taken steps to curb bot and influencer fraud, given the substantial harm it causes to legitimate advertisers.

According to the Report, the computing community is designing sophisticated social bot detection methods.  Nonetheless, malicious use of social media bots remains a serious issue.

In terms of FTC action and authority involving social media bots, the FTC recently announced an enforcement action against a company that sold fake followers, subscribers, views and likes to people trying to artificially inflate their social media presence.

According to the FTC’s complaint, the corporate defendant operated websites on which people bought these fake indicators of influence for their social media accounts.  The corporate defendant allegedly filled over 58,000 orders for fake Twitter followers from buyers who included actors, athletes, motivational speakers, law firm partners and investment professionals.  The company allegedly sold over 4,000 bogus subscribers to operators of YouTube channels and over 32,000 fake views for people who posted individual videos – such as musicians trying to inflate their songs’ popularity.

The corporate defendant also allegedly also sold over 800 orders of fake LinkedIn followers to marketing and public relations firms, financial services and investment companies, and others in the business world.  The FTC’s complaint states that followers, subscribers and other indicators of social media influence “are important metrics that businesses and individuals use in making hiring, investing, purchasing, listening, and viewing decisions.” Put more simply, when considering whether to buy something or use a service, a consumer might look at a person’s or company’s social media.

According to the FTC, a bigger following might impact how the consumer views their legitimacy or the quality of that product or service.  As the complaint also explains, faking these metrics “could induce consumers to make less preferred choices” and “undermine the influencer economy and consumer trust in the information that influencers provide.”

The FTC further states that when a business uses social media bots to mislead the public in this way, it could also harm honest competitors.

The Commission alleged that the corporate defendant violated the FTC Act by providing its customers with the “means and instrumentalities” to commit deceptive acts or practices.  That is, the company’s sale and distribution of fake indicators allowed those customers “to exaggerate and misrepresent their social media influence,” thereby enabling them to deceive potential clients, investors, partners, employees, viewers, and music buyers, among others.  The corporate defendant was therefor charged with violating the FTC Act even though it did not itself make misrepresentations directly to consumers.

The settlement banned the corporate defendant and its owner from selling or assisting others in selling social media influence.  It also prohibits them from misrepresenting or assisting others to misrepresent, the social media influence of any person or entity or in any review or endorsement.  The order imposes a $2.5 million judgment against its owner – the amount he was allegedly paid by the corporate defendant or its parent company.

The aforementioned case is not the first time the FTC has taken action against the commercial misuse of bots or inauthentic online accounts.  Indeed, such actions, while previously involving matters outside the social media context, have been taking place for more than a decade.

For example, the Commission has brought three cases – against Match.com, Ashley Madison, and JDI Dating – involving the use of bots or fake profiles on dating websites.  In all three cases, the FTC alleged in part that the companies or third parties were misrepresenting that communications were from real people when in fact they came from fake profiles.

Further, in 2009, the FTC took action against am alleged rogue Internet service provider that hosted malicious botnets.

All of this enforcement activity demonstrates the ability of the FTC Act to adapt to changing business and consumer behavior as well as to new forms of advertising.

Although technology and business models continue to change, the principles underlying FTC enforcement priorities and cases remain constant.  One such principle lies in the agency’s deception authority.

Under the FTC Act, a claim is deceptive if it is likely to mislead consumers acting reasonably in the circumstances, to their detriment.  A practice is unfair if it causes or is likely to cause substantial consumer injury that consumers cannot reasonably avoid and which is not outweighed by benefits to consumers or competition.

The Commission’s legal authority to counteract the spread of “bad” social media bots is thus powered but also constrained by the FTC Act, pursuant to which the FTC would need to show in any given case that the use of such bots constitute a deceptive or unfair practice in or affecting commerce.

The FTC will continue its monitoring of enforcement opportunities in matters involving advertising on social media as well as the commercial activity of bots on those platforms.

Commissioner Rohit Chopra issued a statement regarding the “viral dissemination of disinformation on social media platforms.” And the “serious harms posed to society.”  “Social media platforms have become a vehicle to sow social divisions within our country through sophisticated disinformation campaigns.  Much of this spread of intentionally false information relies on bots and fake accounts,” Chopra states.

Commissioner Chopra states that “bots and fake accounts contribute to increased engagement by users, and they can also inflate metrics that influence how advertisers spend across various channels.”  “[T]he ad-driven business model on which most platforms rely is based on building detailed dossiers of users.  Platforms may claim that it is difficult to detect bots, but they simultaneously sell advertisers on their ability to precisely target advertising based on extensive data on the lives, behaviors, and tastes of their users … Bots can also benefit platforms by inflating the price of digital advertising.   The price that platforms command for ads is tied closely to user engagement, often measured by the number of impressions.”

Click here to read the Report.

© 2020 Hinch Newman LLP

To Reverify or Not: Form I-9 and Lawful Permanent Residents

On Friday, May 15, the U.S. Department of Homeland Security (DHS) issued a notice clarifying to employers that they cannot reverify Lawful Permanent Residents (LPRs) who presented evidence of permanent residence status that was unexpired at the time of the employee’s initial Form I-9, Employment Eligibility Verification, regardless of later expiration. While employers were never required to reverify LPRs, there has long lacked specific instruction on this, leading many involved in human resources across Pennsylvania and New Jersey to conduct reverifications of LPRs in violation of federal law.

What is Form I-9?

Form I-9, Employment Eligibility Verification (“Form I-9”), is used to:

verify the identity and employment authorization of individuals hired for employment in the United States.” All employers in the United States must are required to implement procedures for the use of Form I-9 that ensure its proper completion for each individual that is hired for employment in the United States—citizens and noncitizens alike.

Federal law requires employers to “allow employees to choose which document(s) they will present from the Lists of Acceptable Documents” that is included with Form I-9. As the DHS M-274, Handbook for Employers, notes, in “Section 1, an LPR may choose to present a List A document (such as Form I-551, Permanent Resident Card, commonly referred to as a Green Card) or a List B and C document combination (such as a state-issued driver’s license and unrestricted Social Security card).”

LPRs are issued a Form I-551, Permanent Resident Card (LPR Card) as evidence of permanent resident status. If an individual is an LPR and presents a valid LPR Card when completing Form I-9, the LPR Card is deemed a sufficient “List A” document, thereby rendering successful the employer’s verification of the individual’s identity and ability to work in the United States. An employee need not present any further evidence. Acceptable LPR Cards include:

  • Those issued from January 1977 to August 1989 that have no expiration date;
  • Currently unexpired, but with 10-year expiration dates; and
  • Currently unexpired, but with 2-year expiration dates.

To Reverify or Not to Reverify?

The DHS notice informs that employers who successfully complete the Form I-9 verification process with an LPR Card that either did not have an expiration date or was a 10- or 2-year LPR Card that was unexpired at the time of verification must not seek to reverify the employee in the future even if the LPR Card later expires.

However, when an individual that is an LPR presents the following to an employer during the Form I-9 verification process, it is necessary to reverify:

  • Expired LPR Card and Form I-797, Notice of Action (which is issued when an individual applies to renew an LPR Card), that indicates the LPR Card’s validity has been extended. Employers should consider these documents as acceptable “List C” evidence, requiring reverification at the end of the extension period. Note that the employee must still present a valid, unexpired “List B” document to satisfy the initial Form I-9 verification.
  • Form I-94 or Form I-94A, Arrival-Departure Record, containing an unexpired temporary I-551 stamp and a photograph of the individual. When presented, these documents are acceptable “List A” evidence. Employers must conduct a reverification no later than when the I-551 stamp expires, or one year after the issuance of Form I-94 or Form I-94A, Arrival-Departure Record, should the record not indicate an expiration date.
  • Current foreign passport with a photograph and either a temporary I-551 stamp or I-551 printed notation on a Machine-Readable Immigrant Visa. Additionally, if the current, foreign passport is, in the rare instance, endorsed with “CR-1,” rather than an I-551 stamp, the employer is reminded that the “CR-1” endorsement is the equivalent of an I-551 stamp. Employers must conduct a reverification when the I-551 stamp or I-551 printed notation on the Machine-Readable Immigrant Visa expires. If there is no expiration date listed, the reverification must occur no later than one year from the date that the I-551 was stamped or “CR-1” was endorsed in the foreign passport.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on employment verification, see the National Law Review Labor & Employment law section.

CARES Act Provider Relief Fund – Acceptance of Funds Comes with Conditions

Healthcare providers are among those financially adversely affected by the COVID-19 pandemic.

A survey conducted by the Medical Group Managers Association (“MGMA”) on April 7 and 8, 2020, found that 97% of medical practices have experienced a negative financial impact directly or indirectly related to COVID-19.  MGMA also indicates that, on average, practices report a 55% decrease in revenue and a 60% decrease in patient volume since the beginning of the COVID-19 crisis.

In response to the financial impact on healthcare providers, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, signed into law on March 27, 2020, appropriated $100 billion in relief funds to hospitals and other healthcare providers under the Public Health and Social Services Emergency Fund, also called the “CARES Act Provider Relief Fund.” On April 10, 2020, the United States Department of Health and Human Services (“HHS”) released the initial terms and conditions related to the distribution of the initial $30 billion of the $100 billion.  Rather than await the submission of applications by healthcare providers, HHS has begun a rapid delivery of relief funding to healthcare providers and suppliers that are enrolled in Medicare and received Medicare fee-for-service reimbursement in 2019.  These eligible healthcare providers are being allotted a portion of the initial $30 billion distribution based upon their proportionate share of the approximately $484 billion of Medicare fee-for-service reimbursements made in 2019.

Healthcare providers identified as eligible to receive funds from this first distribution should have received an email to that effect.  Eligible healthcare providers have begun receiving payments via the Automated Clearing House account information on file used for reimbursements from The Centers for Medicare and Medicaid Services (“CMS”).  Healthcare providers that normally receive a paper check for reimbursement from CMS will receive a paper check in the mail.

These payments are not loans and, if used consistent with the applicable terms and conditions, will not need to be repaid.  Healthcare providers must sign an attestation confirming receipt of the funds and agreeing to the terms and conditions of payment within 30 days via the online payment portal.  Should a healthcare provider choose to reject the funds, the healthcare provider within 30 days of receipt of payment must complete the attestation to indicate this and remit the full payment to HHS.  The portal will guide the healthcare provider through the attestation process to accept or reject the funds.

The healthcare provider is required to certify, among other things, that it provides or provided after January 31, 2020 diagnoses, testing, or care for individuals with possible or actual cases of COVID-19.  In a recent update, HHS clarified that to meet this requirement, care does not have to be specific to treating COVID-19, as “HHS broadly views every patient as a possible case of COVID-19.” HHS also clarified that a healthcare provider’s eligibility is not adversely affected if it ceased operations as a result of the COVID-19 pandemic, so long as the healthcare provider provided diagnoses, testing, or care for individuals with possible or actual cases of COVID-19.

In addition to imposing use restrictions for the funds and recordkeeping requirements, the CARES Act authorizes the HHS Office of Inspector General (“OIG”) to audit both interim and final payments made under the program.  Healthcare providers that elect to accept the funds must be prepared to submit to these OIG audits.  Because the funds are limited to necessary expenses or lost revenues due to the pandemic not otherwise reimbursable from other sources, there may be differences in OIG’s interpretation of whether the funds were used for an appropriate purpose.  At a minimum, this may necessitate returning certain disallowed funds following an audit.

Failure to abide by the terms and conditions could result in False Claims Act liability for healthcare providers that do not make proper use of the funds.  Thus, recipients of the funds should carefully consider their ability to comply with the terms and conditions and should ensure that proper controls are in place for proper use of the funds.

© 2020 Ward and Smith, P.A.. All Rights Reserved.

For more on CARES Act funding, see the Coronavirus News section of the National Law Review.

An Overview of STEM OPT Employer Site Visits

Employers who have employed F-1 students in the Science, Technology, Engineering, and Mathematics (STEM) category of the Optional Practical Training (OPT) program can expect site visits by the Student and Exchange Visitor Program (SEVP). The March 2016 STEM OPT rule allows the United States Department of Homeland Security (DHS) to conduct site visits of employers that train STEM OPT students.

Conducting Site Visits

The site visits are aimed to ensure that STEM OPT students are in compliance with the OPT program rules. Employers must engage the students in a structured, work-based learning experience consistent with the practical training and other information provided in Form I-983 – Training Plan for STEM OPT students. Employers will receive prior notification of such visit and the DHS will then assess if the program mentoring is working for both the student and employer.

The DHS is looking to verify if the employer has enough supervisory personnel to effectively maintain the program. The DHS might first request information through phone or email and conduct a site visit right after giving notice or do so later.  The DHS may ask employers to provide evidence that they use to assess the wages of similarly situated U.S. workers. The DHS will maintain all the information that is obtained during a site visit.

Consequences of Site Visits

The DHS’s Immigration and Customs Enforcement (ICE) will be overseeing employer location site visits. The DHS may refer matters to the U.S. Department of Labor or any other appropriate federal agency if the site visit warrants such referral.

If the DHS determines that an employee or student needs to update or clarify any information, the DHS will send a request in writing to the employer on how they should provide that necessary information.

Preparation for Students and School Officials

Students and Designated School Officials (DSO) must be prepared in anticipation of these upcoming site visits. Students must update their information in the SEVP portal or report updates to their school officials to make sure that their employer information and home addresses are up-to-date. Students must also be careful to update the address and name of the employer’s location where they are working. DSOs should also be prepared to provide the student’s up-to-date Form I-983 if requested.

Preparation for Employers

Now will be a good time for the employers to ensure that Form I-983 is updated and to ensure that the student’s training complies with the training plan. Also, to designate a company representative and train them on how to handle any such site visits by ICE. Employers must also maintain audit files containing all relevant STEM OPT form copies and supporting documents.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on DHS STEM OPT visits, see the National Law Review Immigration law sections.

DACA: Updates and Options for Dreamers

This November, the United States Supreme Court is set to hear oral arguments on the case that will decide the fate of the Deferred Action for Childhood Arrivals (DACA) program.[1] This program, established through executive action, has offered a temporary reprieve from removal (deportation) to nearly 800,000 students and young professionals raised in the United States.[2] While the program protects a generation categorically denied opportunity to gain legal status,[3] it is very limited in scope. Remarkably, DACA does not confer any immigration status itself nor offer a separate pathway to any other status including permanent residency.[4]

The idea that someone can be present in the United States without legal status while not unlawfully present is confusing – not only to the general public, but apparently to the Supreme Court. In oral argument for U.S. v. Texas, Chief Justice John Roberts wondered, “I’m sorry, that just so I get that right… Lawfully present does not mean that you’re legally present.”[5] Justice Samuel Alito also asked, “[H]ow can it be lawful to work here but not lawful to be here?”[6] If members of this nation’s highest court struggle with this concept, it is no wonder there is confusion surrounding DACA.

DACA: Benefits and Limitations

The DACA recipients, or “Dreamers,”[*] are in legal limbo: allowed to work in the United States, but with no legal status. DACA recipients are permitted to continue their education, and receive a social security number.[7] In some states, recipients can also apply for a driver’s license.[8] DACA also offers a reprieve from accruing “unlawful presence,” a legal term for time spent in the United States without status as an adult, which can lead to future bars to reentry to the US.[9] However, the deferred action program does not, on its own basis, allow its recipients to apply for a separate status.[10] DACA protections expire every two years, and require subsequent renewal applications.[11]

It is no wonder that Dreamers have been called “the best and brightest young people.”[12] The DACA protections only extend to a group of educated youth that have never been convicted of most categories of crimes.[13] To qualify, an applicant must have arrived to the country under the age of sixteen, attend school or have completed their education, and be under the age of thirty, among other requirements.[14] By the nature of the program, recipients arrived as children and therefore may not have a connection to their country of birth. As a result, many Dreamers are attending universities, building careers, and living their lives in the United States without a guarantee that they can obtain legal status to stay permanently.

DACA is Unique Only in its Limited Scope

Deferred action is a commonly used exercise of prosecutorial discretion.[15] As with many other government actions, officials set enforcement priorities to manage limited resources. In addition, the Department of Homeland Security can grant deferred action on an individual basis at any time.[16] The Dreamers’ immigration standing is also not unique, because, as Chief Justice Roberts and Justice Alito learned, many foreign nationals in the US can work legally but do not have legal status. This includes applicants for adjustment of status to permanent residence, and foreign nationals of countries granted Temporary Protected Status (TPS).[17] Applicants for political asylum are also permitted to work legally in the US after a certain time period while awaiting a final decision on their applications.[18]

The DACA program is part of a long history of executive actions related to immigration. In 1961, the Kennedy Administration established a program to give immigrant visas to Cuban refugees, as well as provide financial help, medical care, and other resettlement services.[19] The program benefitted around one million Cuban Americans.[20] Subsequently, when an influx of both Cubans and Haitians arrived on Florida shores in 1980, most were discretionarily admitted to the country.[21] Several years later, President Reagan announced that immigration standards for 200,000 undocumented Nicaraguans would be eased, and directed the immigration service to “encourage and expedite” their work authorizations.[22] After the 1986 immigration reform bill offered a pathway to residence to many undocumented families, around 100,000 children of those families were shielded from deportation by executive action.[23] In 1990, former President Bush expanded the program by creating an application process for undocumented individuals to stay in the United States and receive work permits.[24] Two consecutive administrations also expanded the TPS status of thousands of Salvadorans and Nicaraguans until they were offered a pathway to permanent residency by law.[25] Within this context, DACA is much less beneficial to eligible foreign nationals than other major executive actions on immigration, because it provides no pathway to any other immigration status and certainly not permanent residence.

The DACA program was designed as a solution to a problem created by more recent changes to immigration law, which were promoted by many of the same immigration restrictionists that now oppose DACA. For most of American history, migrants from Mexico and other countries travelled back and forth across the border for work in the United States, but maintained a primary residence in their home countries.[26] Migration consisted of seasonal flows from Mexico corresponding to the need for agricultural and railroad workers.[27] There was often no need to stay permanently, so workers returned home in the winter.[28] As a result, families often stayed in Central America instead of relocating to the U.S.[29]

During the second half of the 20th century, U.S. law made it difficult to legally migrate from Central America.[30] As a result, it became risky to travel across the border and entire families settled undocumented.[31] While DACA did not fix this legal status discrepancy, it allowed the children of these families to stay and continue their education and careers.

Recent Changes to the DACA Program

In 2017, the Trump Administration attempted to end the DACA program.[32] After several lawsuits were filed to challenge the termination of DACA, injunctions were issued to order the Department of Homeland Security to continue to process DACA renewals and employment authorizations, but the government could refuse new applications.[33] The pending litigation challenges whether the Trump administration acted with proper authority in attempting to end the program, and whether the Court has the authority to review the administration’s decision.[34]

Even if the Supreme Court upholds the Trump Administration’s decision to end the DACA program, there remains a chance that Congress will act to protect Dreamers. An amendment to immigration law would render the pending case moot and take precedence over any Department of Homeland Security administrative decision. Although at least ten iterations of the bill have been introduced, none have passed.[35] This year, the House passed the American Dream and Promise Act which would grant DACA recipients permanent, statutory protections.[36] However, the bill still has to pass the hurdle of a favorable Senate vote.[37]

The situation of Dreamers is that of legal purgatory – with the door shut to legal status and very few options to leave the United States and return with a visa. Legislative action has been stalled for decades and now a conservative Court is poised to hear the case in the coming weeks. Dreamers and activists alike hope the Court will see DACA as a rational response to protect 800,000 young people from the legal conundrum created by U.S. immigration law.

Options for the Future

With the future of the DACA program uncertain, many Dreamers and employers are assessing their options. The following section is an overview of considerations for DACA recipients, who are in a unique and challenging legal position. With each type of visa, there are exceptions and complicating factors, such as criminal convictions, that may affect eligibility. Although immigration law permits waivers of certain conditions, waivers are granted only in narrow circumstances. As a result, each individual should discuss their unique situation with an experienced immigration attorney.

Immigrant Visa Petitions.

There are several types of immigrant visas available for individuals wishing to become permanent residents, including primarily (1) immediate relative petitions, (2) family-based petitions, and (3) employment-based petitions.[38] The first category can be filed by a U.S. citizen spouse, parent, or an adult child (over the age of twenty-one).[39] The second two types of immigrant visas, based on family and employment, each have different subcategories and are subject to numerical annual limits.[40]

Even if a DACA recipient can qualify for an immigrant visa, there are unique issues that may prevent many from receiving the green card. There are two avenues to receive permanent residency: consular processing at a U.S. Consular Post abroad; and adjustment of status while present in the United States.

Adjustment of Status. Whether a DACA recipient can adjust their immigration status to permanent resident depends on the time spent in the United States without legal status, the manner of U.S. entry, and the type of immigration sponsor. As a general rule, Dreamers cannot adjust status with a family-based petition because it requires continuous lawful status.[41] Employment-based petitions are only available if the individual has less than 180 days of unlawful presence.[42] Thankfully, the immediate relative petition allows adjustment to those who have been undocumented for many years.[43] However, like all petitions, the immediate relative petition requires lawful entry to the United States with either a visa or a travel authorization document.[44] Dreamers who marry a U.S. citizen may have other options even without lawful entry, but will want to seek the advice of an immigration attorney.

Consular Processing. The alternative to adjustment of status is applying for an immigrant visa and interviewing at a U.S. embassy. Most DACA recipients will face challenges in this method, as well. Beginning at age eighteen, any person who has spent over 180 days without legal status faces a three year bar to reentry to the United States.[45] This bar increases to ten years after one year of unlawful presence.[46] Therefore, leaving the country for an interview at a U.S. embassy is a practical impossibility for many recipients who have accrued unlawful presence before approval under DACA.

Non-Immigrant Visa Petitions.

There are numerous types of temporary visas. The F-1 student visa, the O-1 extraordinary ability visa, H-1B work visa, and the B visas for tourism and business are all examples.[47] Most DACA recipients face one fundamental challenge to receiving any of these visas: a grant of a temporary status while living in the U.S. requires an existing, valid underlying status. DACA does not confer any non-immigrant status for this purpose.

Thus, Dreamers seeking a temporary visa are in a similar position as those hoping to receive a green card through consular processing. The process requires leaving the United States and reentering with a visa, a path complicated by three-year and ten-year statutory bars. If available, Dreamers may want to pursue a position abroad with their company. In addition, individuals who are eligible may want to consider whether they qualify for Temporary Protected Status (TPS), which would confer the ability to apply for other temporary statuses.

Humanitarian Petitions.

It is worth noting that there are a few pathways in immigration law for humanitarian-based relief, including the special immigrant juvenile visa, asylum, and visas available for survivors of crimes and domestic abuse.[48] These options may present a pathway to permanent residency for DACA recipients, but only for those that qualify and receive a favorable exercise of discretion.

In summary, individuals temporarily protected under DACA should consider alternatives in the coming months before the Supreme Court’s decision. Though the pathway to permanent residency is narrow, there may be a few options available to stay continuously or to work abroad and return after a few years. The most important step is to continue to renew DACA in the meantime. Finally, it is important to consult with an experienced immigration attorney to help navigate the available options.

[*] The name “Dreamers” originated from the name of the legislative act, the Development, Relief, and Education for Alien Minors (DREAM) Act, originally introduced in 2001.

[1] See DHS v. Regents of the Univ. of Calif., 139 S.Ct. 2779 (2019). The case was consolidated with two other lawsuits, Batalla Vidal v. Nielsen and NAACP v. Trump, with oral arguments set for November 12, 2019 and decision expected around June 2020. DACA Litigation Timeline, Nat’l Immigration Law Center, https://www.nilc.org/issues/daca/daca-litigation-timeline/ (Last updated Sep. 28, 2019).

[2] Gustavo Lopez & Jens Manuel Krogstad, Key Facts about Unauthorized Immigrants Enrolled in DACA, Pew Research Cent. (Sep. 25, 2017), https://www.pewresearch.org/fact-tank/2017/09/25/key-facts-about-unauthorized-immigrants-enrolled-in-daca/.

[3] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history (noting DACA protects individuals largely without legal pathways to permanent residency).

[4] See U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 3 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf; See also Frequently Asked Questions, Nat’l Immigration Law Center https://www.nilc.org/issues/daca/faqdeferredactionyouth/ (Last updated Dec. 16, 2016).

[5] Transcript of Oral Argument at 28, United States v. Texas, 136 S.Ct. 2271 (2016) (No. 15-674).

[6] Transcript of Oral Argument at 28, United States v. Texas, 136 S.Ct. 2271 (2016) (No. 15-674).

[7] DACA, Immigration Legal Resource Center, https://www.ilrc.org/daca, (Last visited Oct. 18, 2019).

[8] Immigration Legal Resource Center, Preparing for the Future 15 (2019), https://www.ilrc.org/preparing-future-understanding-rights-and-options-daca-recipients.

[9] Unlawful Presence and Bars to Admissibility, USCIS, https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissi… (Last visited Oct. 18, 2019); Understanding Unlawful Presence Under INA § 212(a)(9)(B) and Waivers of Unlawful Presence, Immigrant Legal resource Center 3 (2019), https://www.ilrc.org/sites/default/files/resources/understanding_unlawful_presence_march_2019.pdf.

[10] See U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (“This memorandum confers no substantive right, immigration status or pathway to citizenship.”).

[11] See Id.; The Dream Act, DACA, and Other Policies Designed to Protect Dreamers, American Immigration Council 3 (2019), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_dream_act_daca_and_other_policies_designed_to_protect_dreamers.pdf.

[12] Get the Facts on the DREAM Act, The White House President Barack Obama (Dec. 1, 2010), https://obamawhitehouse.archives.gov/blog/2010/12/01/get-facts-dream-act; See also The Dreamers Are a Good Part of America’s Future, The Wall Street Journal (July 25, 2017), https://www.wsj.com/articles/the-dreamers-are-a-good-part-of-americas-future-1501002274; Power to the Doers and Dreamers, Unleashing the Best and Brightest, Int’l Business Times (Aug. 16, 2010), https://www.ibtimes.com/power-doers-dreamers-unleashing-best-brightest-193274; Gabrielle Levy, Obama: Trump’s DACA Decision ‘Cast a Shadow’ of Deportation Over ‘Best and Brightest’ U.S. News (Sep. 5, 2017), https://www.usnews.com/news/politics/articles/2017-09-05/obama-trumps-daca-decision-cast-a-shadow-of-deportation-over-best-and-brightest.

[13] U.S. Department of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1 (2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

[14] Id.

[15] See Shoba S. Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. L. J. 243, 246 (2010)

[16] Id.

[17]Employment Authorization Document, U.S. Citizenship and Immigration Services, https://www.uscis.gov/greencard/employment-authorization-document (Last updated Apr. 5, 2018).

[18] Id.

[19] See Larry Nackerud et al., The End of the Cuban Contradiction in U.S. Refugee Policy, 33 Int’l Migration Rev. 176, 177 (1999); See also Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/.

[20] See Larry Nackerud et al., The End of the Cuban Contradiction in U.S. Refugee Policy, 33 Int’l Migration Rev. 176, 177 (1999)

[21] See Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/; See also Julio Capo, The White House Used This Moment as Proof the U.S. Should Cut Immigration, It’s Real History is More Complicated, Time (Aug. 4, 2017), https://time.com/4888381/immigration-act-mariel-boatlift-history/.

[22] Immigration Rules Are Eased for Nicaraguan Exiles in the U.S., New York Times (July 9, 1987), https://www.nytimes.com/1987/07/09/world/immigration-rules-are-eased-for-nicaraguan-exiles-in-us.html.

[23] Am. Immigration Council, Reagan-Bush Family Fairness (Dec. 2014), https://www.americanimmigrationcouncil.org/sites/default/files/research/reagan_bush_family_fairness_final_0.pdf.

[24] Id.

[25] See Drew Desilver, Executive Actions on Immigration Have a Long History, Pew Research Center (Nov. 4, 2014), https://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/; See also Nicaraguan Adjustment and Central American Relief Act, 8 C.F.R. § 240.60 (2014).

[26] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history (noting DACA protects individuals largely without legal pathways to permanent residency); See also Douglas Massey & Karen Pren, Unintended Consequences of US Immigration Policy 38 Population and Dev. Review 1-3 (2012), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1728-4457.2012.00470.x.; Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 1-3 (2011)

[27] Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 3 (2011).

[28] Id.

[29] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history

[30] See Douglas Massey & Karen Pren, Unintended Consequences of US Immigration Policy 38 Population & Dev. Rev. 1-3 (2012), https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1728-4457.2012.00470.x; Marc Rosenblum & Kate Brick, US Migration and Policy and Mexican/Central American Migration Flows 1-3 (2011).

[31] See Dara Lind, Why Ending DACA is so Unprecedented, Vox (Sep. 5, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16236116/daca-history.

[32] Michael Shear & Julie Davis, Trump Moves to End DACA and Calls on Congress to Act, New York Times (Sep. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.

[33] See DACA Litigation Timeline, Nat’l Immigrant Justice Cent., https://www.nilc.org/issues/daca/daca-litigation-timeline/ (Last Updated Sep. 28, 2019); See also Regents of the Univ. of Cal. v. DHS, 908 F.3d 476 (9th Cir. 2018).

[34] Regents of the Univ. of Cal. v. DHS, 908 F.3d 476 (9th Cir. 2018).

[35] Id.

[36] American Dream and Promise Act of 2019, 116th Congress, H.R.6 https://www.congress.gov/bill/116th-congress/house-bill/6.

[37] See Alan Gomez and Ledyard King, House Passes Bill to Protect ‘Dreamers’, but Faces Long Odds in Republican-led Senate, U.S.A. Today (Jun. 4, 2019), https://www.usatoday.com/story/news/politics/2019/06/04/house-passes-bill-dreamers-tps-but-senate-unlikely/1337753001/; Natalie Andrews & Andrew Duehren, House Passes Bill Aimed at Protecting Immigrants Brought Illegally to the U.S. as Children, Wall Street Journal (Jun. 4, 2019), https://www.wsj.com/articles/house-passes-bill-aimed-at-protecting-immigrants-brought-illegally-to-u-s-as-children-11559689659.

[38] See 8. U.S.C. § 1151 (2018).

[39] See 8. U.S.C. § 1151(b)(2)(A)(i) (2018).

[40] See 8. U.S.C. § 1151 (2018).

[41] See 8 C.F.R. §245.1(b)(6) (2018).

[42] Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications, U.S. Citizenship and Immigration Services (July 14, 2008), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/245%28k%29_14jul08.pdf.

[43] See 8 C.F.R. §245.1(b)(6) (2018).

[44] See 8 C.F.R. §245.1(b)(3) (2018).

[45] See 8 U.S.C. § 1182(a)(9)(b) (2018).

[46] See 8 U.S.C. § 1182(a)(9)(b) (2018).

[47] See 8 U.S.C. § 1101(a)(15) (2018).

[48] See Humanitarian, U.S. Citizenship and Immigration Services https://www.uscis.gov/humanitarian (Last visited Nov. 1, 2019). For additional resources, see Humanitarian Protection, Am. Immigration Council https://www.americanimmigrationcouncil.org/topics/humanitarian-protection (Last visited Nov. 1, 2019).

©1994-2019 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Lauren Watford & the Immigration Practice at Mintz Levin.
For more on DACA/Dreamers, see the National Law Review Immigration law page.

DHS Proposes Fee of $10 to File H-1B Petition

Department of Homeland Security (DHS) has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be a fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

  • Full name
  • Date of birth
  • Country of birth
  • Gender
  • Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order,  DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

Jackson Lewis P.C. © 2019

ARTICLE by Amy L. Peck of Jackson Lewis P.C.
For more on DHS filing, see the National Law Review Immigration Law page.