ICE Creates Fake University: DHS Sting

Under the direction of the Department of Homeland Security, a special investigation ICE task force created a fake University to catch foreign students trying to stay in the United States using the ‘Day 1 CPT’ program. Through a bogus online presence and fake office front, the University of Farmington had all the trappings of a real educational institution. However, the fake university had no staff, no instructors, no curriculum, and no classes. Last week, “students” of, and recruiters from, this bogus university were arrested and indicted for conspiracy to commit visa fraud and harboring aliens for profit. These individuals now face the possibility of deportation.

ICE Operation

Since 2015, Homeland Security agents have posed as owners and employees of the University of Farmington. The fake university scheme attempted to lure those students who wished to work while going to school as well as those recruiters that assist fraudulent F-1 students in obtaining university documents. According to the indictment, the university was used by foreign nationals as a “pay to stay” scheme which allowed individuals to remain in the United States by falsely asserting they were full-time students at Farmington University. The operation maintained a shell office in Michigan, the address which was used to maintain false immigration documentation.

Exposing an Exploitation Network

Those arrested in the indictment last week included individuals involved in a nation-wide network of recruiters that assisted fraudulent students in obtaining false records including:

  • fake student records;
  • fake transcripts;
  • falsified statements.

These recruiters named in the indictment charged heavy fees to hundreds of foreign nationals so that they could remain in the United States. By portraying these foreign nationals as students of the University of Farmington, the recruiter network made over a quarter of a million dollars as per the newspaper reports. The profitable network owed its success to the exploitation of foreign nationals wishing to stay in the United States. However, it is unclear if any of the participants of the scheme were aware that the University of Farmington was a fake University.

The indictment comes after a wave of initiatives out of the Department of Homeland Security to maintain the legitimacy of visa programs, like student visa programs. The Homeland Security Special Agent in Charge noted that ICE will be “vigilant to ensure the integrity of the U.S. immigration laws and will continue to investigate this and other transnational crimes.”

USCIS Introduces Online Fee Calculator

Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.

Calculating Fees

From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.

Improper Fees

Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.

Government Shutdown: EB-5 Program & Immigration Agencies

In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.

Impact on EB-5 Applications Prior to December 21st

USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s,  Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.

Additional Visas Impacted

As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.

DHS Proposed Rule: New Changes to Public Charge Inadmissibility

The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.

Major Changes

The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”  

Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.

Colleges Sue DHS Over Student Visas

The United States Citizenship and Immigration Service (USCIS) and the Department of Homeland Security (DHS) are being sued by several colleges over changes to administrative policies changes related to foreign students. In August this year, USCIS changed the method by which USCIS officers calculated unlawful presence accrued by students (J-1, F-1, and M-1). This left many students who had experienced a temporary lapse in status vulnerable to unlawful presence accrual. The plaintiffs claim that the new policy unfairly penalizes students “acting in good faith” with re-entry bans up to ten years.

Policy Change

After August 9thof this year, students on J-1, F-1, and M-1 visas became vulnerable for unlawful presence, an immigration status that if held for more than 180 days, results in a three year ban from the United States. The policy change made students accrue unlawful presence beginning:

  • On the day they no longer pursue a course of study or the authorized activity indicated by their visa, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any “authorized grace period;”
  • The day after their I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain period; or
  • The day after either an immigration judge or Board of Immigration Appeals, orders them to be excluded, deported, or removed, regardless if the decision is appealed.

USCIS claims the changes were meant to hold students accountable for violating the terms of their visas. However, the plaintiffs in the lawsuit find the policy change to be unfair to students accused of status violations.

Lawsuit

The colleges serving as the complainants, Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College claim that the policy change affects both their students and the overall financial health of the higher education institutions. Currently in the District Court of Middle North Carolina, the lawsuit awaits response from DHS representatives.  A representative for Haverford College, stated in an interview that the policy irreparably disrupted [the] students’ educational plans, and Haverford has lost tuition as a result.” The plaintiffs aim to return unlawful presence accrual regulations to those predating the August 9thchange.

International Students on CPT & OPT Denied H-1B Visas

Under new guideline interpretations, many former international students have received denials for H-1B benefits from the United States Customs and Immigration Service (USCIS). According to some reports, F-1 students who have completed work in their field for more than 12 months while earning a degree and in the one-year period following graduation, may be ineligible for H-1B visa benefits. Unfortunately, many students at the end of their Optional Practical Training (OPT) have received denials for their applications to switch to an H-1B visa and must return to their home countries and seek H-1B benefits from their local consulate.

Curricular Practical Training & Optional Practical Training

While studying in the United States, international students have two unique opportunities to gain practical working experience in a career relevant to their field of study. During their program of study, students may complete a for-credit work experience in a field relevant to their major. This program, known as Curricular Practical Training (CPT), allows students to work for up to 12 months while completing their degree. OPT is similar to CPT, but occurs after an F-1 has received their degree, and lasts up to 12 months unless the student receives an extension through STEM OPT. Some students complete both CPT and OPT experiences during their stay as an international student. Now, USCIS has determined that the total duration of work performed for practical training cannot exceed 12 months.

H-1B Denials

For years, students have been able to complete both CPT and OPT with no issues. However, under new practice, students with more than 12 months working experience due to CPT and OPT will be interpreted as having failed to maintain valid F-1 status, and therefore ineligible to switch from an F-1 to an H-1B visa. According to reports, students are continuing to receive approval for OPT spanning for 12 months, regardless if they have completed CPT during their program of study. Therefore, USCIS sets many international students up for denial from H-1B benefits and potential bars for additional visas. Although USCIS does not deny students from completing a period of practical training longer than 12 months, the accumulation of CPT and OPT work experience longer than 12 months will cause students to violate their F-1 status.

We strongly recommend F-1 students to be proactive about their maintenance of status by seeking legal advice in case they do not fully comprehend the law. It may not be enough for them to rely on the DSO’s advice or the USCIS’ approval of OPT following the CPT.

Digital Border Search Under Federal Scrutiny: CBP

Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.

Border Doctrine

Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”

Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.

CBP Issues Travel Reminder: Departure Date

This year, the United States Customs and Border Protection (CBP) launched a new electronic reminder system for foreign national travelers. The new emailing system sends reminders to travelers about the period of time remaining for their particular travel visa. Not only does the email reminder system help travelers keep track of their period of stay, the CBP email reminder will provide notifications for travelers who have overstayed their period of admission.

Email Notification

Within 10 days of the end of a traveler’s admissions period, travelers may receive email notifications from CBP counting down the remaining days left of their stay in the United States. If a traveler overstays, they will continue to receive notice of an overstay violation. In addition to email notifications, travelers may refer to the I-94 website to check their compliance with period of stay limitations. Via the website, travelers may click the “view compliance” tab and enter their personal information to receive updates on their remaining period of stay.

Phishing Warning

Phishing, or email scams, are forms of electronic correspondence that attempt to exploit online users through false email correspondence. Often, travelers receive fake emails from users pretending to represent the federal government of the United States. These emails may falsely notify travelers of urgent notices to their period of stay. Never provide your personal information to an online source claiming to represent the CBP unless you are sure the notification is legitimate. Email notifications should come only from travelerscompliance@cbp.dhs.gov. As fraudulent emails are quite common, it is always advised to check the email address of any notification sent by an official agency.

Stages of Notification

CBP will gradually launch the new travelers notification system. Certain Visa Waiver Program (VWP) recipients are the first to receive email notice from CBP, and most classes of admission will soon be added to the notice system.

OPT Extensions for STEM: New Worksite Changes

On August 17th, USCIS updated guidelines for OPT STEM extensions. The student visa program allows international students the opportunity to gain practical training. For F-1 student’s with degrees in science, technology, engineering, and math, extensions are available to receive temporary employment privileges by an additional duration of 24 months. To qualify, applicants must have a bachelor’s degree in a STEM field as well as other requirements. The program allows students to receive more hands-on experience with employers in a field relevant to the student’s educational background.

Several months ago, however, USCIS made changes to online regulatory guidelines. These changes made clear that students were expected to work only at the worksite related to their STEM OPT employer. Therefore, the previous guidelines prohibited anythird-party or other off-site placement. Thus, ICE worksite visits would be conducted only at the primary address of employment listed on the student’s application. For many, this change limited students from receiving diversified experiences at different worksite related to their employment.

 USCIS Renews Flexibility

The most recent changes to the OPT STEM website retract previous guidelines and offer students greater options and flexibility for training experience. According to USCIS, the Department of Homeland Security (DHS) clarified that STEM OPT students once more have the ability to “engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met.” USCIS reminds beneficiaries of STEM OPT that a “bona fide” employee-employer relationship must be maintained if a student receives training outside of the employer’s principal location. DHS will review each case to ensure that employers listed on the Training Plan maintain the required employee-employer relationship. Students should ensure that a third-party placement or offsite placement does not compromise their employee-employer relationship with their documented supervisor.

Major USCIS Changes: Update on RFE & NOID

On September 11, 2018, the United States Customs and Immigration Service will adopt new guidelines for the issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID). Through no change to the laws of legal immigration, these new guidelines present one of the greatest threats to legal immigration in recent history.

Overview of Changes

In a series of policy memorandums, USCIS gave notice of new guidance for adjudicating officers. This guidance allows adjudicators to deny a request for immigration benefits without issuing an RFE or NOID. Previously, USCIS required adjudicators to send notice to applicants who provided insufficient evidence for an application or petition (RFE & NOID). Without a barrier to outright denial, those applying for immigration benefits can now receive denials if adjudicators determine that there is insufficient evidence.

Who is at Risk?

All applicants, from applications for naturalization to applications filed under the Violence Against Women Act (VAWA), are at risk under these new guidelines. After September 11th, applicants will be at risk of outright denial of their application or petition. With full discretionary power, USCIS adjudicators will be unforgiving of even small errors in applications. Therefore, if a naturalization application is missing a single document of evidence, a USCIS adjudicator can now deny the application without sending a notice for additional information or allowing the applicant to provide an explanation for the missing evidence.

Impact of Denial

If an applicant is denied benefits, then the petitioner or applicant will have to resubmit their application. Meaning, each applicant must repay all immigration fees regardless if their current employment visa was compromised by the denial. However, this is the best case scenario considering further USCIS changes regarding Notices to Appear (NTA). Under this regulation, some applicants who receive outward denials will be required to appear before immigration court to face removal proceedings. The devastating impact of these policies will impact families and highly skilled professionals alike. As September 11thapproaches, all applicants for immigration benefits must be extremely thorough in their applications. If you require assistance with any of your applications, please feel free to schedule a consultation.