United States: Hunton Immigration Law Blog: Our 2019 Forecast In Business Immigration Law, Part 2

Foreign Students Will Face New Threats

DHS's Fall 2017 regulatory agenda proposed "comprehensive reform" to practical training programs, which allow foreign students to obtain paid work after graduation – a pathway that often leads to H-1B and green card sponsorship by a U.S. employer. Although no final rule has yet been published, ICE is still expected to end an Obama-era provision that extended practical training from one to three years for graduates in STEM fields who work for employers enrolled in E-Verify. ICE may also be looking at ways to restrict the standard one-year work permit that all students are eligible for, regardless of academic field.

In addition, USCIS's August 2018 policy memorandum, "Accrual of Unlawful Presence and F, J and M Nonimmigrants," will continue to adversely affect many students and may increase the number of students who become ineligible to return to the United States for three- or ten-year periods. Because foreign students occupy one of the most rule bound U.S. visa categories and depend on school staff to communicate what is permitted and what is not, unwitting lapses are common. Under the new policy, an officer of DHS (which includes ICE, CBP and USCIS) can retroactively determine that a student began accruing unlawful presence on the day they first failed to maintain status. If unlawful presence reaches 180 days, the three-year bar is triggered when the student leaves; a year of unlawful presence triggers the ten-year bar. This is a radical change in practice for students, who have always been admitted not until a fixed expiration date, as others are, but instead for "duration of status," to more easily allow for changes in their academic programs. Until the August 2018 memo, students did not accrue unlawful presence unless a formal finding was made by USCIS terminating their status. Now, in addition to clarifying that both ICE and CBP can determine when unlawful presence begins, DHS also intends, according to its Fall 2018 regulatory agenda, to establish a maximum period of authorized stay for nonimmigrant students, eliminating "duration of status" benefits altogether.

Compliance and Enforcement Actions Will Broaden

Last year, we predicted that on-site visits by government inspectors to H 1B and L-1 workplaces would increase and could expand to other visa categories. We relayed accounts by our clients of site visits for employees on blanket L-1 visas and predicted increased surveillance and inspection in that category. In 2018, ICE initiated more than 6,800 worksite enforcement investigations and almost 6,000 I-9 audits, a four- and five-fold increase from 2017, respectively. We expect to see this trend continue in 2019 in all industries.

USCIS has also ramped up enforcement by focusing resources on its Fraud Detection and National Security Directorate ("FDNS"), which conducts administrative investigations of fraud in the context of petitions and applications to USCIS for immigration benefits. According to the USCIS Ombudsman's June 2018 Annual Report to Congress, in Fiscal Year 2018, FDNS's staffing levels doubled over FY2012 (from about 750 to more than 1,500), and its approach became more "risk-based," using fraud criteria to target certain employers. Often, when a case is long past posted processing times, or a status message indicates the case is being held "in abeyance," it is because FDNS is conducting a heightened background investigation. These can encompass government databases, open source information, physical site visits, written Requests for Evidence, and overseas verifications of foreign records. In 2019, we may see FDNS investigations and heightened background investigations lead to USCIS issuing a higher volume of Notices to Appear ("NTAs"), which initiate removal proceedings against an individual. It remains unclear whether USCIS will prosecute these cases through its own attorneys or, instead, will continue to rely on ICE to represent the government in immigration court. If USCIS has the resources to issue and prosecute NTAs, we may see even longer backlogs in already overloaded immigration court dockets.

We also expect a continued push by the government to make E-Verify mandatory for all U.S. employers. The E-Verify system now has the capacity to check driver's licenses against databases in all fifty states, the District of Columbia, and Puerto Rico. This is intended to reduce the number of fraudulent licenses that are presented for identity verification; however, E-Verify cannot determine whether the license actually belongs to a specific individual or compare the picture on the license to the individual.

Enforcement actions we expect to see throughout 2019 go beyond worksite I-9 compliance and E Verify. For example, with 2019 only one month old, we have already blogged about a sting operation in which ICE ran a fake university to target recruiters and students who may have knowingly registered despite the lack of instructors and classrooms, in order to obtain work authorization. We can expect to see continued enforcement actions aimed at student visa abuse and other forms of potential immigration fraud throughout the year.

Public Charge Findings Will Contribute to Decreased Immigration

Individuals who are a "public charge" cannot support themselves through employment, assets or the help of family and friends, resulting in dependency on government benefits and assistance programs. Except for humanitarian categories (refugees, asylees, victims of crime, etc.), current law prevents immigrants from using major federal means-tested benefits for at least five years after gaining lawful permanent resident status; hence, they must be sponsored by an employer or by a family member who meets certain income requirements. In October 2018, USCIS proposed a rule to greatly expand the benefits that would make someone a public charge, sweeping in many that have historically been exempt, including nutrition assistance from food stamps or the WIC program, health insurance through Medicaid, and housing help through Section 8 vouchers. In addition, the final rule would apply not only to individuals who are immigrating permanently to the United States, but also to those who seek only temporary admission or a temporary extension or change of their nonimmigrant status. USCIS received more than 200,000 comments on the proposed rule, a daunting number that will take time to review and analyze. However, because public charge has been a top priority for this Administration, we are likely to see a final regulation in 2019. It is also likely that we will see litigation after the final rule is published, as it seems geared toward deterring and reducing legal immigration rather than truly examining the likelihood that immigrants will actually become a public charge.

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