TELECONFERENCE: STEM OPT AND THIRD-PARTY WORK-SITES

The USCIS has recently issued two new interpretations on the issue of STEM OPTs working at third-party client work-sites.  These interpretations have dramatic implications for those who continue to work at third-party client sites after August 9, 2018.
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Please join MU Law for a teleconference on this issue.  The teleconference will be July 11, 2018 at 3PM ET.

Topics on the call will include:

• STEM OPT v. non-STEM OPT
• Examination of the current rules and the new rules.
• USCIS interpretation of a third-party client site.
• Unlawful presence v. Failure to Maintain Status

REGISTER HERE

The teleconference is free for MU Law clients and friends of the firm. We look forward to speaking with you!

CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?

Because of two recent USCIS interpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPT workers do not work at third-party worksites under their SETM OPT work authorization until the USCIS issues better and clearer guidance on the issue. 

Working and training at third-party worksites is probably legal.  However, by working at the third-party worksite the STEM OPT trainee puts himself at risk for enormous negative immigration consequences, including a ten-year bar from entering or living in the United States.

USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION

Earlier this year, and without any warning or notice, the USCIS changed its webpage to include this key change:

the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

The USCIS’ justification for the third-party worksite prohibition is, apparently, because ICE (Immigration Customs Enforcement) would lack the authority to investigate at the third-party worksite. 

Curiously, ICE has not produced any guidance on this point.  ICE likely would be surprised to learn that they do not have the authority to investigate a worksite where it believed immigration fraud was being committed.

The website change alone is probably not good law.  There has been no regulatory change.  There has been no notice and comment period, something required for regulatory change.  The “ICE lacks investigative authority” justification for the prohibition against third-party worksites is weak.

If the only thing that USCIS had done was updated their webpage, then MU Law’s position might be that STEM workers could continue to work at third-party worksites, provided that the other qualifications of the program were being met, however, this is not the only change for F-1 students.

F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAIN STATUS

A brand new USCIS policy, effective August 9, 2018, says that F-1 students including STEM OPTs will now accrue “unlawful presence” “the day after he or she engages in an unauthorized activity.”  Accordingly, after August 9, 2018, the USCIS is expected to find that STEM OPTs working at third-party worksites are engaging in “unauthorized activity” and are therefore “unlawfully present”.

Even worse, a USCIS official can retroactively find that an F-1 student engaged in “unauthorized activity”.  A number of leading university administrators have made this point directly to USCIS Director James Cissna.

This is a massive change in long-standing USCIS policy.  Under the prior interpretation, an F-1 student or OPT did not accrue unlawful presence until an immigration judge said so.  Engaging in “unauthorized activity” meant that an F-1 worker “failed to maintain status,” which is a lesser finding.

The distinction between “failing to maintain status” and “unlawful presence” is enormous:

• When someone fails to “maintain status” they must immediately leave the US but can ordinarily immediately reenter the US. 
• When someone is “unlawfully present” for more than 180 days, they must immediately leave the US and are barred from reentering the US for 3 years.  When someone is “unlawfully present” for more than 365 days, they must immediately leave the US and are barred from reentering the US for 10 years. 

Consider this hypothetical scenario:

August 9, 2018 – STEM OPT continues to work at a third-party worksite

April 1, 2019 – STEM OPT worker files an H-1B cap petition

May 1, 2019 – STEM OPT worker’s H-1B cap cases is selected in the H-1B lottery

August 10, 2019 – STEM OPT worker receives an RFE from USCIS asking for proof that he has only engaged in authorized activity.

September 20, 2019 -  H-1B is denied.  USCIS finds that STEM OPT worker’s third-party work was “unauthorized activity”.  USCIS also finds that the STEM OPT worker was “unlawfully present” from August 9, 2018 until September 20, 2019, a period of more than 365 days.  Consequently, the STEM OPT worker must immediately leave the US and cannot reenter the US for 10 years.

CONCLUSION

At this time, MU Law recommends that STEM OPT workers are not placed at third party worksites unless comprehensive analysis is done regarding the viability of the assignment.  STEM OPT workers at third party worksites run the risk of 3 and 10 year bars from reentry into the US.  It is our hope that USCIS provides greatly clarity on these points and engages the public on the issue, rather than creating law by fiat.

JULY 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS

The Department of State has just issued the July 2018 Visa Bulletin.  This is the tenth  Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.

July 2018 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	01JAN12	01JAN12	C	C
EB-2	C	01JAN15	01MAR09	C	C
EB-3	C	01JAN13	01NOV08	C	01JAN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	MEXICO	PHIL'PNES
EB-1	C	C	01JAN12	C	C
EB-2	C	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

MU Law Analysis (all references are to Table A unless noted)

All Other:  The EB-2 has been current for many years.  The EB-3 is also current and is expected to remain current for the foreseeable future.

China (mainland-born):  As often happens as we get closer to the end of the fiscal year, each categories moves with a higher variance than is usual.  We expect that China EB-1 and EB-3 are essentially fully used, which means that there will be no numbers until after October 1, 2018.  On the other hand, the China EB-2 number progressed about 6 months, reflecting than "downgrade" demand that has occurred in the last several years. 

India:  As with China, the retrogression of India EB-1 probably means that there will not be a forward progression until after October 1, 2018.  EB-2 and EB-3 continued their steady progress.  Rumors are flying around the internet about a massive progression of EB-3.  We expect steady progressions for Indian EB-3, reflecting lower demand for these visas in 2008-09.

Mexico: Mirrors All Other in analysis.

Philippines: Phils EB-3 stayed the same.  As with China EB-1 and EB-3, and India EB-1, this probably means no forward progression until October 1, 2018, when the new fiscal year begins.  There is a minimal chance of a small progression in the next few months.

DID THE DOL ELIMINATE STAFFING COMPANY GREEN CARDS?

Thank goodness the answer is NO.  Green cards are still viable for roving employees and for staffing company employees.

Nevertheless, the rumor that the DOL has “cancelled” the long-standing Farmer Memo has been flying around the internet.  A cancellation of the Farmer Memo could be seen a massive strike against the viability of “roving employee” green cards, which make up the bulk of IT and healthcare staffing company’s green cards. 

Thankfully, AILA has confirmed that the rumor is false.  The Farmer Memo is still good guidance for PERM green cards.  The recent "cancellation" notification of the Farmer Memo that appeared on the DOL website is “simply an administrative system update that does not reflect any policy change.”

The Farmer Memo, which has existed since 1994, provides the basis for green cards where the employer does not know where the employee will actually work, as is the case for most staffing companies.  The Farmer Memo instructs staffing company petitioners to use the employer’s headquarters as the “worksite”.  The Memo has been cited by the DOL countless times as good law, notably in Matter of Amsol.

Relevant section of the Farmer Memo

10. LABOR CERTIFICATION APPLICATIONS WHERE ALIENS WILL BE WORKING AT VARIOUS UNANTICIPATED SITES Applications involving job opportunities which require the beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer's main or headquarters office is located.

In Item 7 (address where alien will work) of part A of the Application for Alien Employment Certification, the employer should indicate that the alien will be working at various unanticipated locations throughout the U.S. A short statement should also be included explaining why it is not possible to predict where the work sites will be at the time the application is filed.

No Impact on Schedule A cases

Even if the Farmer Memo had been cancelled, Schedule A cases would not have been impacted.  Schedule A cases are green card petitions for Nurses and Physical Therapists.  The DOL’s PERM FAQ website still contains this FAQ (Notice of Filing FAQ #12), which allows roving employees and provides guidance on how to prepare Schedule A green card petitions.

12. Where must I post a Notice of Filing for a permanent labor certification for roving employees?

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.