ICE – Immigration Briefs

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.

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

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.

What 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.

The Visa Stamp in My Passport Expired, am I in the United States Illegally?

What Happens if the Visa Stamp in your Passport Expires or is revoked? Are you required to leave the United States? Or are you allowed to stay? Many people seem confused as to what a visa stamp is for, what an I–94 is for, etc. Therefore, every once in a while, we think it is good to review these concepts.

As most people know, in order to enter the US, generally you will need a visa stamp in your passport (the big colerful stamp that takes up a whole page – not the entry stamp you get when coming to the US with the date you need to leave the US). There are, of course, exceptions to this. Permanent Residents and citizens do not need visas. Also, those entering under the visa waiver program are not required to get a visa stamp either (although they do have to use the online system prior to any trip to the US). However, as stated above, generally most people will need to visit a US Consulate and receive a visa stamp in their passport before entering the United States. The purpose of the visa stamp is just that, to allow you to enter the United States. It does not control your status in the US, it does not indicate when you need to leave the US. It is simply a tool to allow you to travel and enter the United States.

Whenever you do enter the United States, you are required to go through an immigration control line, in which Immigration and Customes Enforcement (ICE) Officers, and perhaps USCIS officer, will review your passport, visa stamp, immigration history, etc. and determine if you are admissable to the United States. Despite having the visa stamp in your passport, these officers can still deny you entry to the United States if they believe that you meet one of the grounds of inadmissability or are not eligible for the status you are seeking. If they determine that you are eligible they will allow you to enter and will provide you with an entry stamp in your passport and an I–94 online. It is these documents, the entry stamp and I–94 that control your status in the United States. Whatever date is listed on these documents is the date your stay will expire and when you need to leave the US. Therefore, if your Visa Stamp expires it does NOT affect your stay in the US. Just recently, the DOS confirmed that this is the case, and further confirmed that even if DOS revokes your visa, this does not affect your stay in the US either. It is up to ICE and USCIS to revoke your status in the US and to kick you out, if they are so inclined. DOS simply does not have that power.

Why would your visa be revoked? Well, there are many reasons, including that you no longer qualify for the status (i.e., a tourist visa for someone who filed a green card application or you move to an H visa, etc.), or some other information comes to light that shows you no longer qualify (security concerns, etc.). While a visa revocation alone will not affect your stay in the US, it is a good idea to talk with your attorney (or an attorney) if you do receive such a letter in the mail, as it could be a harbinger of other things to come.

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.