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ICE Knocking on Doors of Companies Hiring Foreign Tech Students

Aug. 13, 2019, 10:10 AM

Immigration and Customs Enforcement investigators are visiting workplaces to check employers’ compliance with a government program that allows foreign students to work in the U.S. after graduation.

Some attorneys are concerned the move could further limit legal immigration for skilled workers, especially the tech-savvy students who are eligible to work an extra year under the program, known as Optional Practical Training, or OPT.

The compliance checks are “within their authority,” but ICE’s exercise of that authority has been “very recent,” said Karine Wenger of the immigration law firm Fragomen, Del Rey, Bernsen & Loewy in San Diego. “It looked like we were the guinea pigs” when her clients first got notice of the visits in early July, she said.

“This is just another step in the Trump administration’s direction towards limiting legal immigration,” said immigration attorney Emily Neumann of Reddy & Neumann in Houston.

There’s also a concern that international students could be scared away by the prospect of the site visits, which are conducted by the same agency that recently rounded up 680 immigrant workers in a raid on food processing plants in Mississippi.

“The imagery associated with raids is not the vision we want international students and scholars to think of when they consider the United States as an educational destination,” said Esther D. Brimmer, executive director and chief executive officer of NAFSA: Association of International Educators. NAFSA is an organization of some 10,000 professionals who work with international students at U.S. colleges and universities.

No Action So Far

So far, the employers of OPT participants haven’t reported any negative consequences of the site visits. But that could change.

Many U.S.-born tech workers say the extended OPT program for science, technology, engineering, and mathematics (STEM) majors has derailed their careers as much as the H-1B specialty occupation visa program, a target of President Donald Trump since his presidential campaign.

In response, Rep. Paul Gosar (R-Ariz.) introduced legislation to end the program and called upon Trump to do so by executive order.

Litigation over the Department of Homeland Security’s authority to implement OPT has been pending for years, resulting in the current regulation‘s release in 2016. Unlike similar challenges to Obama administration immigration programs, the Trump administration has defended STEM OPT in court.

‘General Compliance Measure’

Multiple attorneys say they’ve heard of no STEM OPT site visits for the past three years, but ICE says they’ve been occurring since the regulations went into effect in September 2016.

“Site visits are a general compliance measure,” ICE spokeswoman Carissa Cutrell said. “The visits help ensure that students and employers are engaged in work-based learning experiences consistent with the purpose of the STEM OPT program and the information supplied on the student’s Form I-983,” she said. Students must complete that form—along with their employers—to participate in the program.

A “cross-section” of employers of “various sizes and industries” have been subject to the visits thus far, Cutrell said.

The Homeland Security Department’s STEM OPT website says employers are subject to site visits and that 48 hours’ advance notice will be provided. “DHS will conduct site visits in a manner that balances the burden on the employer with the need to ensure compliance with the STEM OPT program,” it says.

Relatively Simple

The visits so far have been relatively simple, said Andrew Greenfield of Fragomen’s Washington office. ICE is asking “basic questions” of employers and “relying on their responses to confirm compliance,” he said.

The experience was similar for Wenger’s clients. ICE personnel “were really interested about understanding the terms of the training plan” and “wanted to make sure that the manager was complying with that,” she said.

Questions also related to whether there was a connection between a worker’s field of study and the skills he or she was developing, she said.

It “would take this to a new level” if employers are asked to provide documentation backing up their answers, Greenfield said.

That could involve the need to turn over payroll records to prove whether a STEM OPT worker is earning the same wages as similarly situated U.S. workers. ICE also could require proof that the training is being conducted by the employer and not the client company if the investigation involves third-party placement, he said.

“It will be interesting to know who’s actually getting the visits,” said John Miano, the New Jersey attorney representing the U.S. tech workers suing over the OPT program. Findings of fraud or noncompliance will be less likely with larger, well-established companies, he said.

Potential Consequences

ICE could be “cutting the head of the snake off in the beginning” by targeting international student workers before they get H-1B visas, said Neumann of Reddy & Neumann. OPT is often used as a jumping point to the H-1B program.

Attorneys say the main concern from a negative site visit is the potential for the STEM OPT worker to lose his or her F-1 student visa if ICE finds noncompliance.

A finding of misrepresentation also could render an international student “inadmissible,” Wenger said, meaning not only the loss of a student visa, but also the inability to apply for another type of visa.

From an employer perspective, ICE may share information gathered during a site visit with agencies that enforce other immigration programs, such as the H-1B, Neumann said. That could result in further enforcement actions related to other workers, she said.

Employers should have a protocol in place in the event of any site visit, Greenfield said.

And “it’s a good time to review the training plans and to review the compliance obligations that the employers have attested to” on the I-983 form, he said. “It still remains to be seen just how deep ICE will dig,” he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Phil Kushin at pkushin@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com