Posted 12/21/2020
As a result of class action litigation in Vangala v. USCIS challenging USCIS's “No Blank Space” policy, USCIS has agreed to stop implementing the rejection policy for asylum applications and U visa petitions starting December 28, 2020. AILA provides a practice alert with additional details.
On December 1, 2020, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, finding that the U.S. Department of Labor (the Department) failed to show it had good cause to forgo advance notice and comment under the Administrative Procedure Act for the Interim Final Rule (IFR), Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872 (Oct. 8, 2020). The court’s order sets aside the IFR, which took effect on October 8, 2020 and implemented reforms to the prevailing wage methodology for the Permanent Employment Certification, H-1B, H-1B1, and E-3 visa programs. Similarly, on December 3, 2020, the U.S. District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604, applying to the plaintiffs in that case.
The Department is taking necessary steps to comply with the courts’ orders, including making required technical changes to the Foreign Labor Application Gateway (FLAG) system, in a manner that minimizes service disruptions for customers and OFLC staff. Specifically, the Department must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR with the OES prevailing wage data that was in effect on October 7, 2020. To reduce the risk of unintended system problems or errors while this occurs, employers and their authorized attorneys or agents may experience a brief delay in their ability to use the FLAG system to submit new Labor Condition Applications for Nonimmigrant Workers (LCAs), Form ETA-9035/9035E, and receive determinations on Applications for Prevailing Wage Determination, Form ETA-9141, where the Occupational Employment Statistics (OES) survey data is the prevailing wage source.
· The OES prevailing wage data for each SOC and area of intended employment that was in effect on October 7, 2020 (i.e., data for 7/1/2020-10/7/2020) has remained publicly accessible at https://www.flcdatacenter.com/.
· To limit any confusion for stakeholders, beginning at approximately 12:00PM (Noon) Eastern Time on December 4, 2020, this data source will be updated at https://www.flcdatacenter.com/ to reflect the correct prevailing wage data for each SOC and area of intended employment through June 30, 2021.
· All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.
· Beginning around 6:00AM Eastern Time on December 4, 2020, the FLAG system will be temporarily unavailable to deploy necessary code changes to temporarily disable the OES prevailing wage calculator, which uses the 10/8/2020-6/30/2021 wage source year data to prepare Form ETA-9035/9035Es.
· Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online; however, employers and their authorized attorneys or agents will temporarily not be able to submit applications for processing where OES survey data is the prevailing wage source.
· Beginning around 8:30AM Eastern Time on December 9, 2020, employers and their authorized attorneys or agents will be able to submit new LCAs, Form ETA-9035/9035E, using the OES survey data that was in effect on October 7, 2020.
· OFLC’s National Prevailing Wage Center (NPWC) has temporarily paused processing pending Form ETA-9141s for use in filing LCA and PERM applications. However, employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time.
· Beginning around 8:30AM Eastern Time on December 15, 2020, OFLC’s NPWC will resume processing all pending and new Form ETA-9141s for use in filing LCA and PERM applications, and will use the OES survey data that was in effect on October 7, 2020 for prevailing wage determinations where the OES survey data is the prevailing wage source.
Each Friday we try to give everyone a quick snapshot of the main things going on in the immigration world. Here is the run down for 11/6/2020:
Public Charge Rule: Once again the public charge is in play. The 7th Circuit granted emergency relief to the administration on the implementation of this rule meaning that I-944s are once again required to be submitted alongside such things as the I-485.
Adjustment Charts: USCIS has noted that applicants may use the filing date for filing their I-485s for the month of November.
H4 Work Permits: A judge in California has denied relief to spouses on H4s for getting automatic renewals of their EADs despite slow processing from USCIS.
Last night, President Trump signed and released the proclamation alluded to in his tweet from Monday about “suspending immigration.” Below you will find our summary of what this means, but the good news is that the scope of the proclamation and its impact are actually very limited.
Who Is Impacted?
Only individuals who are outside the US and applying for an immigrant visa to enter the US as a permanent resident within the next 60 days.
Who Is Not Impacted
The following things are not impacted by this order:
Filing the I-140 or getting the I-140 approved.
Filing the I-485, getting the I-485 approved, or receiving your green card based on an approved I-485.
Filing the I-765 to apply for employment authorization, getting the I-765 approved, or receiving your EAD.
Filing the I-131 to apply for advanced parole, getting the I-131 approved, or receiving the AP travel document.
Any nonimmigrant visa including F-1 and dependents, J-1 and dependents, O-1 and dependents, H-1B and dependents, etc.
Other Key Points
The U.S. Department of State had already suspended all routine visa services in response to the coronavirus pandemic. Since it was already nearly impossible to get a new visa outside the US, the new proclamation largely formalizes the status quo.
Even with the very narrow scope of the executive order, there are many exceptions, including for individuals who already have received their immigrant visa and individuals who will work as physicians, nurses, or other healthcare professionals.
The proclamation is valid for 60 days. It can be extended beyond that, but for now it is set to expire on June 23, 2020.
Even if your plan is to apply for an immigrant visa at a consulate broad, you can still file the I-140, and the I-140 still can be approved. The only impact would be to delay when you can receive the immigrant visa to enter the US.
Conclusion
We understand that this is a time of great uncertainty for everyone, but particularly for our clients, and we promise to keep you updated with any new developments. But for now, the impact of this degree is fairly limited in scope and duration.
We have just received the new Executive Order. The order appears to only impact individuals applying for Immigrant Visa Processing (IVP) outside the US and will not impact the I-140, I-485, I-131, or I-765. We will update further tomorrow as we are able to gather more information, but for now, anyone processing the I-140 or I-485 should continue as normal. You can find the full text of the order here.
Last night President Trump tweeted that he would issue an executive order to temporarily “suspend immigration into the United States.” We know such a statement from the President can understandably create a lot of anxiety and uncertainty, so we want to share our opinion of what this probably means and the likely impact in order to prevent any unnecessary confusion.
At this point, we have nothing more to go on than the President’s vague tweet. “Suspend immigration into the United States” does not mean anything legally, and trying to figure out what the President envisions when he says this is difficult at best. The concept of “immigration” has a very technical and legal aspect to it, but this administration has often used the term broadly and imprecisely. Furthermore, no official confirmation or clarification has been provided by the White House or Department of Homeland Security at this time. Our position is that until we see something more official, it’s best to treat this as a political statement, not a legal one. The President does not have the authority to “cancel” immigration because most of the law regarding immigration is established by Congress. Major changes to immigration require congressional approval (in other words, both the House and Senate must agree). The administration standing alone without Congress does not have the legal authority to “cancel” immigration, and any attempts to do so would likely be met with significant legal challenges.
It’s also important to put this statement into context. Given the current pandemic and its spread across the globe, the U.S. Department of State has already ceased many operations overseas. For example, the Department of State has suspended all routine visa services at all U.S. Embassies and Consulates, effectively making it impossible to get a new visa outside the U.S. except in emergency situations. The policy of the administration has been to limit travel from individuals overseas to the U.S. in order to prevent further spread of the virus. President Trump’s tweet may simply refer to further restrictions on travel into the U.S. from abroad.
In short and at this time, we simply don’t know what the order will say or what its impact will be. Indeed, everything right now is simply speculation because of the vagueness of the tweet and the lack of official confirmation. However, given the context of the current global situation, the administration’s past actions, and the limits on President Trump’s authority to change immigration laws, we believe that this new policy will likely be targeting activities that originate abroad and impact travel from one country to another. This means that we believe that I-140 and I-485 cases are unlikely to be directly impacted at this time.
We of course will be following these developments very closely and we will update as soon as we possibly can with any new information.
USCIS has provided the following update regarding RFEs with the current coronavirus situation which allows for 60 days more to respond to any current requests:
“In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced that it adopted measures to assist applicants and petitioners who are responding to certain Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). This alert clarifies that this flexibility also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion.
Notice/Request/Decision Issuance Date:
This flexibility applies to an RFE, NOID, NOIR, NOIT or appealable decision within AAO jurisdiction and the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.
Response Due Date:
Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.
USCIS is adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.
USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection. Please visit uscis.gov/coronavirus for latest facts and other USCIS updates.”
DOS has announced that they are closing down non-essential services in most countries. This includes routine non-immigrant and immigrant visa appointments. No update has been given on when they may be resumed at this time.
We wanted to quickly update you on how our team is responding to the situation surrounding coronavirus in the U.S. We understand that the immigration process is often stressful enough on its own, and we’re sure that the added uncertainty in the world right now only makes it more so. We’re dedicated to continuing to help you to navigate this process as effectively as possible during this outbreak.
Of course, the health and safety of all our team members is also a top priority, and we believe we have a social responsibility to do our part in helping slow the spread of coronavirus. We are therefore taking added precautions to make sure that we can continue to meet all of these goals and stay flexible in this time of rapid change.
We will be encouraging our team to work from home as much as possible in the coming weeks. Because we have strong systems in place to allow us to work remotely with our clients, we believe that this will allow us to most effectively continue to work on your cases with minimal delays while also reducing the risk to our team, our families, and the community. The one challenge this presents is in printing, preparing, and mailing packages to USCIS for filing. To address this part of the process, our plan is to have individual team members come into the office on staggered days to focus on these tasks. This may create small delays between when your case is ready to be filed and when we can actually get it mailed out, but we expect to be able to have each attorney-case manager team prepare and send out packages once a week so the delay should be very minimal. That said, we also will take extra steps to ensure that we are able to meet deadlines for any urgent situations such as an RFE response or people running out of visa status.
We appreciate your patience during the coming weeks as we strive to adapt to this unprecedented challenge, and we will communicate any further updates as needed. We look forward to continuing to help you achieve your immigration goals. Please let us know if you have any questions or concerns, and best wishes to you and your families.
The High-Skilled Immigration Team
The March 2020 Visa Bulletin has been released by the U.S. Department of State along with some additional information from the Chief of the Visa Control and Reporting Division, Charlie Oppenheim. While this month’s bulletin does not contain any major changes, we now have additional information about a possible retrogression in the EB-2 Rest of World category in the coming months:
“EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines and EB-2 Vietnam) remains current in March, but Charlie continues to monitor demand closely. Based on current demand patterns, retrogression in EB-2 Worldwide will be required no later than June 2020 and possibly as early as April 2020.”
Given the recent coronavirus outbreak in mainland China, Department of Homeland Security (DHS) has issued new restrictions for inbound flights to the US. Any travel to mainland China should be carefully considered before departing at this time. See the below original message from USCIS:
U.S. DEPARTMENT OF HOMELAND SECURITY
Office of Public Affairs
DHS Issues Restrictions On Inbound Flights With Individuals Who Have Been In China
Flights must arrive at designated airports with enhanced public health resources
WASHINGTON — In response to the evolving threat of the novel coronavirus, and to minimize the risk of spreading within the United States, the Department of Homeland Security (DHS) today will begin enforcing restrictions for all passenger flights to the United States carrying individuals who have recently traveled from the People’s Republic of China. In accordance with the President’s Proclamation and at the direction of Acting Secretary Chad F. Wolf, the restrictions will begin for flights commencing after 5:00 p.m. EST on Sunday, February 2nd, and will direct the arrival of U.S. citizens who have traveled in China within 14 days of their arrival to one of seven designated airports, where the United States Government has enhanced public health resources in order to implement enhanced screening procedures. The administration is taking these actions to protect the American people.
Additionally, U.S. citizens who have been in Hubei province within 14 days of their return will be subject to up to 14 days of mandatory quarantine to ensure they are provided proper medical care and health screening. U.S. citizens who have been in other areas of mainland China within 14 days of their return will undergo proactive entry health screening and up to 14 days of self-quarantine with health monitoring to ensure they have not contracted the virus and do not pose a public health risk. Generally, foreign nationals (other than immediate family of U.S. citizens, permanent residents, and flight crew) who have traveled in China within 14 days of their arrival, will be denied entry into the United States.
“While the overall risk to the American public remains low, funneling all flights with passengers who have recently been in China is the most important and prudent step we can take at this time to decrease the strain on public health officials screening incoming travelers. These steps will also expedite the processing of U.S. citizens returning from China, and ensure resources are focused on the health and safety of the American people,” said DHS Acting Secretary Chad F. Wolf. “We realize this could provide added stress and prolong travel times for some individuals, however public health and security experts agree these measures are necessary to contain the virus and protect the American people. To minimize disruptions, CBP and air carriers are working to identify qualifying passengers before their scheduled flights. Once back in the U.S., it’s imperative that individuals honor self-quarantine directives to help protect the American public.”
“The American public can be assured that DHS and its component agencies are taking decisive action to analyze the threat, minimize risk, and slow the spread of the virus by working closely with CDC health professionals and interagency partners involved in this whole-of-government effort,” he added.
DHS and the Transportation Security Administration (TSA) have coordinated extensively with air carriers and the Centers for Disease Control and Prevention to designate the seven U.S. airports at which CDC will seek to identify potentially ill persons.
Americans flying to the United States from China will be re-routed to the following airports at no cost to the traveler:
John F. Kennedy International Airport (JFK), New York;
Chicago O’Hare International Airport (ORD), Illinois;
San Francisco International Airport (SFO), California;
Seattle-Tacoma International Airport (SEA), Washington;
Daniel K. Inouye International Airport (HNL), Hawaii;
Los Angeles International Airport, (LAX), California; and
Hartsfield-Jackson Atlanta International Airport (ATL), Georgia.
Although the CDC expects more cases of the coronavirus in the U.S., the risk of infection for Americans remains low, and all agencies are working aggressively to monitor this continuously evolving situation and to keep the public educated and informed:
American air travelers should be aware that if they have been to China in the last 14 days, they will be routed through one of seven airports to undergo enhanced health screenings.
Any individual traveling from China who has either been in Hubei Province or other areas of the mainland and is showing symptoms associated with the virus will be screened and subject to mandatory quarantine by medical professionals at a nearby facility.
If a traveler who spent time in China, but outside the Hubei province, is re-routed through one of the seven airports and shows no symptoms following a health screening, they will be re-booked to their destination and asked to “self-quarantine” at their homes.
CBP and air carriers are working together to identify and rebook any passengers that meet these criteria, however other travelers without a nexus to China may also be routed through one of these seven airports if it is discovered mid-flight that someone else on their flight has been in China in the last 14 days.
Travelers showing symptoms should be prepared for the possibility of prolonged delay to avoid spreading the infection.
For the latest information on the outbreak, visit CDC’s Novel Coronavirus 2019 website.
# # #
USCIS has issued guidance last evening that the new public charge rule will go into effect on February 24th, 2020 and will only be applied to cases that are postmarked after that date. This means for anyone that files their I-140/I-485 prior to this date, the public charge rule would not be applied. See below for the message from USCIS:
“WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will implement the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on Feb. 24, 2020, except for in the State of Illinois where the rule remains enjoined by a federal court as of Jan. 30, 2020. Under the Final Rule, USCIS will look at the factors required under the law by Congress, like an alien’s age, health, income, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge.
The Final Rule, issued in August and originally scheduled to be effective in October, prescribes how DHS would determine whether an alien is inadmissible to the United States based on the alien’s likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The Final Rule also addresses USCIS’ authority to issue public charge bonds in the context of applications for adjustment of status. Finally, the Final Rule includes a requirement that aliens seeking and extension of stay of change of status demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.
“Self-sufficiency is a core American value and has been part of immigration law for centuries. President Trump has called for long-standing immigration law to be enforced and U.S. Citizenship and Immigration Services is delivering on this promise to the American people,” said Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary for DHS. “By requiring those seeking to come or stay in the United States to rely on their own resources, families and communities, we will encourage self-sufficiency, promote immigrant success and protect American taxpayers.”
Except for in the State of Illinois, USCIS will only apply the Final Rule to applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt. The Final Rule prohibits DHS from considering an alien’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before Oct. 15, 2019, when deciding whether the alien is likely at any time to become a public charge. In light of the duration of the recently-lifted nationwide injunctions and to promote clarity and fairness to the public, DHS will now treat this prohibition as applying to such public benefits received before Feb. 24, 2020. Similarly, the Final Rule prohibits DHS from considering the receipt of public benefits by applicants for extension of stay and change of status before Oct. 15, 2019 when determining whether the public benefits condition applies, and DHS will now treat this prohibition as applying to public benefits received on or after Feb. 24, 2020.
USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020, to give applicants, petitioners, and others ample time to review updated procedures and adjust filing methods. After Feb. 24, 2020, everywhere except in the State of Illinois, USCIS will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020. If USCIS receives an application or petition for benefits using incorrect editions of the forms, USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms.
USCIS will continue to release information through its website in the weeks leading to the rule’s implementation date, including in the event that the injunction Illinois is lifted. This will include an update to the USCIS Policy Manual.
In the coming weeks, the agency is planning to hold a public engagement for immigration attorneys, industry representatives, and other relevant groups to discuss the final rule.
DHS remains enjoined from implementing the Final Rule in the State of Illinois. Should the injunction in Illinois be lifted, USCIS will provide additional public guidance.
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis), and LinkedIn (/uscis).”
The S.Ct. of the United States has just stayed the injunction (aka lifted the current lower court injunction) on the current public charge rule. You can find the opinion here. This rule seeks to not only codify certain preexisting rules on this subject but also potentially expand the nature of when someone can be deemed a public charge.
We will provide more information regarding the implementation of this topic as further clarification is gleaned from USCIS.
EB-1:
In February the final action date for EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico Philippines and Vietnam) advances two months to December 1, 2018. Based on currently available information, it remains possible--yet too early to confirm--that this category could become current in the summer of 2020. The final action dates for EB-1 China and EB-1 India continue to hold at May 22, 2017 and January 1, 2015 respectively in February.
EB-2:
EB-2 Worldwide is current for February 2020. Charlie notes that demand for EB-2 Worldwide numbers continues to trend in such a way that a final action date may be imposed at some point during the second half of FY2020.
EB-2 China advances two weeks in February to July 15, 2015, and EB-2 India advances one day to May 19, 2009.
EB-3:
Charlie notes that EB-3 Worldwide and EB-3 Other Workers Worldwide will become subject to a final action date in March 2020. Charlie will determine what that date will be upon receipt of data from USCIS in February 2020.
EB-3 China advances one month to January 1, 2016 in February 2020, slightly widening the final action date spread between EB-3 China’s and EB-2 China’s final action dates, placing EB-3 China 5.5 months ahead of EB-2 China. Evidence of significant downgrades from EB-2 to EB-3 have not yet materialized, but Charlie continues to watch these categories closely.
EB-3 India advances one week to January 8, 2009 in February 2020, narrowing the gap with EB-2 India, final action date of May 19, 2009, to about four months.
The final action date for EB-3 Philippines advances 2.5 months in February 2020, which exceeds the “up to one month” advancement projected in the January 2020 Visa Bulletin. According to Charlie, the reason for this more aggressive advancement was to allow for additional number usage before EB-3 Worldwide becomes subject to a final action date in March 2020. Approximately 36% of EB-3 Philippines demand is processed at USCIS, with 64% processed at the U.S. Consulate in Manila.
Below is a message publicly transmitted by USCIS today regarding the E-1 and E-2 categories for individuals from Iran:
“USCIS today announced that, due to the Oct. 3, 2018, termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran, Iranian nationals are no longer eligible for E-1 treaty trader and E-2 treaty investor changes or extensions of status based on the treaty.
The E-1 and E-2 nonimmigrant visa classifications allow an alien of a treaty country to be admitted to the United States for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business.
E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.
Due to the termination of the treaty, USCIS will send Notices of Intent to Deny to affected applicants who filed applications after the Department of State’s Oct. 3, 2018, announcement. Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires.”
The 2nd Circuit Court of Appeals has denied the federal governments request to lift the injunction currently in place regarding the new public charge rule. Of the initial three national injunctions, this is the only one in place still.
The January Visa Bulletin has just been released, and there are only minor positive changes:
EB-1 India Final Action Dates have not moved
EB-1 China Final Action Dates have moved forward by one week
EB-1 Rest of World Final Action Dates have moved forward 2.5 months
EB-2 India Final Action Dates have moved forward by 3 days
EB-2 China Final Action Dates have moved forward by 3 weeks
EB-2 Rest of World remains current
The biggest news is that there is no retrogression of the EB-2 Rest of World category, and none is currently expected before April at the earliest.
In essence, there are no major changes to worry about in January. We will of course keep you updated as we hear anything else.
The December 2019 Visa Bulletin has been released by the U.S. Department of State, and while there are no major changes in this month’s bulletin, there is some information about a possible retrogression in the EB-2 category in the coming months. The following information from the Visa Bulletin is only relevant to individuals who are filing an EB-2 NIW, who are born in a country other than India or China, and who have not yet filed the I-485:
“In recent weeks there has been a steadily increasing level of Employment-based demand for adjustment of status cases filed with U.S. Citizenship and Immigration Services. Continuation of the current demand pattern would require the establishment of final action dates in the Employment Second, Third, and Third Other Worker preference categories as early as January. Such action would be required in an effort to hold number use within those FY 2020 annual limits.”
This is all of the information we have at this time: that there may be a retrogression in the EB-2 and EB-3 categories as soon as January 2020. We don’t yet know whether this would be based on filing or final action date and we likely will have no other information until the January Visa Bulletin is released next month.
October 11, 2019: Federal Judges from the U.S. District Court for the Southern District of New York and the U.S. District Court for the Northern District of California have issued injunctions blocking the implementation of the Department of Homeland Security's new public charge regulations.
The regulations, which were scheduled to become effective on October 15, were intended to subject individuals applying for immigrant and nonimmigrant statuses to a much higher level of scrutiny of their personal financial situations. Multiple lawsuits have been filed nationally challenging DHS's authority to broaden the scope of their public charge analysis.
Numerous sources are now reporting that Immigration and Customs Enforcement (ICE) has started to visit and inspect the worksites of foreign nationals with employment authorization under STEM OPT.
STEM OPT is a program that provides foreign nationals who graduated from an American university with a degree in a STEM (science, technology, engineering, and mathematics) field an additional two years of employment authorization under the OPT (optional practical training) program. STEM OPT is popular both with workers and employers, as it does not require an employer to file a petition (as they would have to in order to hire someone as an H-1B or O-1A employee) and allows workers the ability to change employers. Employers who hire workers on STEM OPT are required to develop and document a comprehensive training program—including evaluations and milestones—for the STEM OPT worker. While ICE has always had the authority to conduct site inspections since 2016, this appears to be the first time they have exercised that authority at a very significant scale.
During a site inspection, ICE officers are most likely to be interested in reviewing a STEM OPT worker’s training program and ensuring that the program is being implemented correctly. An ICE officer may also ask to speak to a STEM OPT worker’s supervisor or with people responsible for HR or immigration; an ICE officer may also ask to see the worksite and the STEM OPT worker’s workspace. Employers with STEM OPT workers can best prepare for these inspections by making sure that their training plans for STEM OPT workers are up to date and in compliance with any applicable regulations; employers should also make sure that all necessary staff members, such as the STEM OPT employee’s supervisor, are aware of the details of the STEM OPT employee’s training program.