preparing for the new era of immigration enforcement community college conference on legal issues...
TRANSCRIPT
Preparing for the New Era of Immigration Enforcement
Community College Conference
on Legal Issues 2012
David Ware—David Ware & Associates
Steve Springer—NAFSA: Association of International Educators
Is the government closely analyzing the data you’re providing, watching your international students/faculty, maybe
planning a visit?
3
· Who may be coming?· Who will they contact?· What data are they analyzing?· Recent initiatives· Policies and practices to ensure compliance· Establishing visit/record release protocols
Who’s Watching and/or Visiting?
U. S. Immigrations and Customs Enforcement (ICE)
U. S. Citizenship and Immigration Services (USCIS)
U. S. Customs and Border Protection (CBP)
U. S. Department of State (DOS)
U. S. Department of Labor (DOL)
Discussion
• Any visits or contacts/visits from these or other law enforcement agencies you’d be willing to share (in general terms)?
• Do you have institutional policies, protocols, practices for handling such visits and related requests for records?
• Do you have institutional policies addressing who may “speak for the institution”?
The Ice-Man/Woman Cometh!
U. S. Immigration and Customs Enforcement is “re-branding” as Homeland Security Investigations
Student & Exchange Visitor Program• SEVP is part of DHS Office of Homeland Security Investigations
• Student and Exchange Visitor Information System (SEVIS)• If your institution enrolls international students (F-1s and
M-1s) or exchange visitors (J-1s), then it participate in SEVIS• Designated School Officials and agencies input information• SEVP uses data for “flags”
• For example, reports are that hundreds of Tri-Valley University students showed the same apartment/residence address
• Initial certification, biannual recertification, and recordkeeping and reporting requirements found at 8 CFR 214.3
• Certification requires site visit, recertification may include one, and there’s a chance of “out of cycle review” and visit
SEVP, ctd.• New adjudication of actions that used to be accomplished by
notification through SEVIS, like adding a DSO or program of study• Avoids notice and comment process, which would benefit SEVP greatly
• In part, due to headlines re notorious incidents (Tri-Valley University, etc.)
• Expect SEVP to monitor data more closely to ensure that• Student records are up to date (esp. residence address)• School information is up to date (esp. “instructional sites”)• Students are not violating employment and distance education
restrictions
• Expect slow adjudications, cumbersome process, and SEVP confusion about “the business of higher ed.,” like how accreditation works , use of temporary sites for “overflow” classes, why a delay in offering a new program of study (major) to international students is detrimental, etc.
• Expect “out of cycle” review and site visits to result ((8 CFR214.3(h)(3)(ii))
SEVP, ctd.• SEVP recertification of F and M international student programs
• “Reaffirms . . . school's eligibility for SEVP certification and . . . compliance with recordkeeping, retention, reporting and other requirements” (8 CFR214.3(h)(2)(iii)(A))
• “Assessment . . . will focus primarily on overall school compliance, but may also include examination of individual DSO compliance . . . [which] will be considered in any petition for recertification of the school.” (8 CFR214.3(h)(2)(iii)(B))
• “All schools are subject to on-site review, at the discretion of SEVP” (8 CFR214.3(h)(2)(iii)(C))
• SEVP is off to a late start but ramping up quickly• Approximately 1900 schools have started the process• Initially SEVP notified 50 schools/month, but is now notifying 450/month
to begin the process
Aspects of SEVP Contact/Visit• If you have international students, you will have to complete recertification
• Recertificaiton notice is to PDSO by e-mail, and SEVP has contacted many PDSOs by telephone and e-mail with follow-up questions, especially “instructional sites” indicated on school website but not on school’s I-17 (see NAFSA resource http://www.nafsa.org/resourcelibrary/default.aspx?id=29197)
• SEVP seems overwhelmed, so unlikely to visit large percentage of schools, but prepare by at least by keeping Form I-17 up to date and reviewing record-keeping requirements at 8 CFR 214.3(g) and ensuring that you can make these available if SEVP asks (SEVP has noted much inaccurate/outdated I-17 data)
• Possible visit by non-expert contractor with a checklist or by SEVP official or ICE agent with specific questions/concerns
• Address items SEVP “flags” on recertification report, even if no action required
• “Out of Cycle” review would likely be generated by suspicions of violations
• Establish protocol for contacts and visits (SEVP would likely contact or visit the Primary Designated School Official (PDSO), but possibly President)
• Not often questions about specific students, other than reports/records required by 8 CFR 214.3, but good idea to establish records release protocol
CTCEU• Counterterrorism and Criminal Enforcement Unit (CTCEU) is, like
SEVP, part of DHS Office of Homeland Security Investigations
• Comprised of three divisions• National Security Threat Task Force• Terrorist Tracking Pursuit Group•
• SEVIS Exploitation Section• “Identifies, investigates, and prosecutes schools and individuals who
exploit the vulnerabilities of SEVIS”• “Proactively targets and reviews SEVP certified schools . . . to develop
criminal investigations for HSI field agents”
• Administers Project Campus Sentinel
• This summer, CTCEU trained 100+ ICE/HSI field agents, from all 26 field offices, to carry out Project Campus Sentinel (100+ more in 2012)
CTCEU, ctd.• Project Campus Sentinel
• “is an outreach initiative established in April 2011 by ICE . . . (HSI) directed toward academic institutions that are approved by HSI to enroll nonimmigrant students. The purpose of this outreach program is to build mutual partnerships between HSI Special Agent in Charge offices and Student and Exchange Visitor Program certified institutions. This exchange will enable HSI to detect and proactively combat student visa exploitations and address inherent national security vulnerabilities.” http://www.dhs.gov
• See 2011 and 2010 CTCEU presentations on NAFSA website• http://www.nafsa.org/resourcelibrary/default.aspx?id=29289 and
http://www.nafsa.org/resourcelibrary/default.aspx?id=24115
• Many schools and DSOs have been visited by an ICE agent (now referred to as an HIS agent), and eventually almost all will
• Ask DSOs to identify questionable schools and “problem students”
Aspects of CTCEU Contact/Visit• Campus Sentinel will result in a visit to most schools, so prepare
• Usually contact is with PDSO but could be DSO met at a conference, etc.
• Outreach has been informal, such as “dropping by for a cup of coffee,” which is probably well-intentioned but doesn’t recognize institutional protocols
• Be prepared for questions about “problem institutions,” “problem students,” as well as requests for records and information about some students
• Establish protocol for such visits, so they’re helpful/effective but internally controlled
• Based on FERPA and USAPATRIOT, determine record release policy/protocol
• Careful to avoid identifying difficult students and “institutions who do things differently” who don’t warrant law enforcement investigation
• One proactive approach by some institutions has been to invite ICE to a larger meeting of campus officials to discuss Campus Sentinel
• See http://www.ice.gov/counterterrorism-criminal-exploitation/
ICE/HSI, Other• “Worksite Enforcement”
• I-9 compliance• Recent flurry of notices of inspection (1000 on 6/15/2011!)
• Must also be careful to avoid “over-documentation” and discrimination (DOJ-enforced)
• Several interagency programs to verify work authorization
• E-Verify• USCIS internet-based system for verifying work authorization of new hires• requires signing MOU with DHS and SSA waiving rights and allowing visits• Unclear whether participation provides any protection
• IMAGE (ICE Mutual Agreement Between Government and Employers)• To enroll, must submit to ICE I-9 audit and agree to “best hiring practices”• Unclear whether participation provides any protection
• Social Security “No-Match” letter program• On hold/in litigation several times,
• ICE is also responsible for Removal/deportation, and occasionally asks schools for information/records on students and employees
Aspects of ICE Contact/Visit• Per regulations (8 CFR 274a.2(b)(2)(ii)) employer (generally, employer’s representative who
signs I-9s) must be provided Notice of Inspection (NOI) three days in advance of inspection
• In addition to I-9s for current and former (up to one year) employees, NOI may include wide variety requests, including these common ones (AILA 6/29/11 Practice Alert):
• SSA “no match” correspondence• List of employees with SSA#, DOB, and hire date• Quarterly tax statements and other tax information• Indication of whether employer enrolled in E-Verify
• Time sensitive (!), so have a protocol (who works on this)
• Establish careful I-9 practices and recordkeeping, strong training programs, and consider internal “mock audits”
• Consider using outside counsel for establishing compliance programs/practices, mock audits, and training
• Use AILA resources, like AILA’s Guide to Worksite Enforcement and Corporate Compliance and see “I-9 Central” at www.uscis.gov for guides, forms, etc.
• Establish visit/contact and record/information release protocols for ICE inquiries about students and employees
U. S. Citizenship and Immigration Services
U. S. Citizenship and Immigration Services• USCIS created Office of Fraud Detection and National Security (FDNS) in 2004 to
detect and deter immigration benefit fraud, etc., and in 2009 initiated Administrative Site Visit and Verification Program
• In 2010 FDNS conducted approximately 20,000 site visits of several kinds:• Risk Assessment Program fraud study (joint ICE/USCIS)
• Applications/petitions chosen at random, usually after approval, and visits help design fraud profiles
• Targeted Site visits• Usually occur when fraud is suspected
• Administrative site visits• Currently focus on religious workers and H-1Bs, conducted by contractor who asks a list of
questions to employer and employee• USCIS informed AILA that it conducted 14,443 H-1B site visits in FY 2010• See http://www.uscis.gov/USCIS/News/2011/transcript_H-1B_Neufeld.pdf
• Expect more site visits, more review and verification of data, attestations, and identity (like VIBE) and emphasis on E-Verify and IMAGE
Aspects of USCIS Contact/Visit• Most likely contact/visit related to employee for which institution has filed
“work visa” petition or “green card” petition
• By signing some USCIS forms, like Form I-129 petitioner acknowledges legal authority of USCIS to audit and verify “by any means appropriate” including “on-site compliance reviews”
• FDNS may conduct a variety of database checks and background checks in USCIS processing of applications/petitions
• Most site visits completed by contractors (see “Compliance Review Report), and include contact with both employer’s representative and employee, primarily to obtain additional information about the employer (which may not be easily available) and verify information stated in petition such as location of employee, hours, salary, benefits, duties, dates of employment, etc.
• FDNS officers are trained fraud investigators, not sworn law enforcement agents, have no authority to detain/arrest, issue administrative warrants or compel appearance for testimony
• Establish visit and record release protocol
U. S. Customs and Border Protection
U. S. Customs and Border Protection• Within the U.S., especially near borders, U. S. Customs and Border
Protection(CBP) regularly makes stops, boards buses and trains, and searches travel hubs like airports and train/bus stations
• See http://www.fas.org/sgp/crs/homesec/R42057.pdf
• Recent news reports indicate that CBP has been instructed to discontinue this practice in favor of “‘intelligence driven’ enforcement [that] will provide better targeting . . ., thus making better use of Border Patrol agents and resources.”
• See Homeland Security Today article: http://www.hstoday.us/single-article/new-border-patrol-policy-for-checking-transportation-hubs-for-illegals-sparks-controversy/9e106da7d32101d7ed61de888d3bebac.html
• Institutions probably need not expect site visits from CBP but if the internal stops and searches resume, CBP may “visit” your students/staff traveling within U.S. in various stations and public conveyances
• You may hear from students and employees surprised by “show me your documents” encounters inside the U.S. , possibly even detained
Department of State
Department of State• Exchange Visitor Program (EVP) is administered by DOS Bureau of
Educational and Cultural Affairs, Office of Private Sector Exchange
• Recent extensive “bad press” for summer work/travel program and longstanding questions about it are resulting in investigations and intense scrutiny, and could lead to misguided attack on all J programs
• LA Times article: http://www.latimes.com/news/nationworld/nation/la-na-student-visa-20111206,0,5090093.story
• NY Times article: http://www.nytimes.com/2011/08/18/us/18immig.html?_r=1&pagewanted=all
• GAO 2005 report: http://www.gao.gov/products/GAO-06-106
• Congressional hearings expected soon (scheduled once, then delayed)
DOS, ctd.• DOS redesignation of J exchange visitor programs
• Regs. (22 CFR 62.7), indicate every five years but Border Security Act requires every two years
• No specific mention of site visits in regs., but quite possible and increasingly likely
• “On-site reviews”: last year DOS visited 21 largest academic J-1 programs and expressed an interest in expansion of site visits
• http://www.nafsa.org/resourcelibrary/default.aspx?id=25275
• Expect EVP to monitor SEVIS data more closely to ensure that Student/Scholar records and institution information are up to date
• Expect more “on site reviews” both as part of redesignation but also as random and targeted integrity measures, possibly without notice
• Expect increasing emphasis on “exchange” and scrutiny of uses of program for faculty/staff (scholars) to ensure that program is not being used as “worker program”
DOS, ctd.• The Visa Office, within DOS Bureau of Consular Affairs, has initiated
a variety of verification/fraud detection/compliance activities in recent years
• 2010 DOS Fraud Prevention Unit pilot program to solicit/verify information related to petitions filed with USCIS that could result in visa
• Employers contacted by telephone (apparently some site visits, too) and asked to provide/confirm information that would be sent to the consulate and inform any related visa application
• Sporadic reports from nonimmigrants of contact from consulate that issued visa to verify certain information/activities
• Usually by e-mail
• May seek to verify employment, school attendance, or departure from U.S. after program
• Expect more FPU contacts, maybe site visits in the future (?)
Aspects of DOS Contact/Visit• EVP would usually contact Responsible Officer of school’s program with questions about
the program, but FPU may contact person who signed USCIS petition or the employee who obtained a visa
• Most likely FPU contact/visit related to employee for which institution has filed “work visa” petition and employee then obtained a visa
• Most site visits completed by contractors, and include contact with both employer’s representative and employee, primarily to obtain additional information about the employer (which may not be easily available) and verify information stated in petition such as location of employee, hours, salary, benefits, duties, dates of employment, etc.
• If you have an Exchange Visitor (J-1) program, you’ll undergo DOS redesignation eventually, and the same principles concerning SEVP recertification apply
• If you host J-1 “scholars” (professors, researchers, etc.), you should be able to discuss the exchange aspects of each scholar’s program as DOS increasingly focuses on whether exchange programs are being used improperly simply as “worker programs”
• Students and employees contacted by consulates, usually by informal e-mail message or phone calls, may ask you about legitimacy
Department of Labor
U. S. Department of Labor• The Office of Foreign Labor Certification, within DOL’s
Employment and Training Administration, is responsible for DOL aspects of “work visas” and “green cards”
• OFLC currently has no site visit programs in place and rarely contacts employers directly outside of the application-audit process
• But, this may change since DOL is so hyper-focused on fraud (to the extent, some argue, that it fails to carry out its duties adequately)
• DOL Wage and Hour Division has instituted other verification procedures, like questionnaire to H-1B employees verifying attestations on Labor Conditions Application like location, hours, duties, salary, benefits, etc. (see questionnaire)
• Questionnaire indicated that employee should not consult the employer in completing it
• Expect more fraud detection measures and possibly site visits in the future
DOL, ctd.• DOL may audit or inspect an employer’s Labor Conditions Application files
(similar to an ICE I-9 inspection)
• In the past, these audits have been somewhat rare and usually complaint-driven, such as through a complaint by a disgruntled employee, but we may see more random and targeted DOL-generated audits
• Secretary of Labor, Hilda Solis, stated that she will aggressively pursue violations: "there is a new sheriff in town”
• Troubling only because audits are burdensome and DOL seems not very adept in distinguishing the law-breakers from the law-abiding
• Generally, the audits seek to ensure that the employer is living up to all of its attestations concerning its H-1B employees, such as salaries, benefits, and conditions and location of employment
• Failures can result in back-pay awards (can be significant), civil fines, and debarment from program which would mean an inability to hire H-1B workers
• Expect more fraud detection measures and possibly site visits in the future
Aspects of DOL Contact/Visit• Currently no site visit programs, but certainly possible in the future
• Most likely contact is employer’s representative who signs DOL forms in connection with “work visa” or “green card” petition
• Most likely scenario, which remains unlikely, is an LCA audit
• However, these are burdensome!
• Keep records as if you expect to be audited, such as be able to locate files by LCA #, not just employee name, since that’s how DOL will ask for them
• Same principles concerning I-9 inspections apply – good compliance programs, careful recordkeeping procedures, and training programs
• To date, other most likely scenariois related to employee for which institution has filed “work visa” or “green card” petition, and currently DOL has contacted only beneficiaries/employees, directly
• Quite likely that your H-1B employees and possibly those for whom you’ve filed “green card” petitions may be contacted and asked to verify attestations you have made in DOL applications – you just may not know about the questionnaires received
Preparing for the New Era: Steps
30
5. Establish record/information release protocols
4. Establish agency visit protocols
3. Gather the players and plan ahead
2. Establish compliance practices
1. Know the rules
Know the Rules• They vary, depending on the specific process at
issue (students, employees, etc.)
• Ensure that you select qualified employees
• Provide them the necessary training and resources
• Conduct inter-department and cross-department compliance training
• Consider hiring experts to conduct training
Preparing for the New Era: Steps, ctd.
32
5. Establish record/information release protocols
4. Establish agency visit protocols
3. Gather the players and plan ahead
2. Establish compliance practices
1. Know the rules
Establish Compliance Procedures• Without this step, no agency visit will go well
• Since there are a variety of areas requiring compliance, a discussion of each is beyond the scope of this presentation, but we’ll mention general principles
– Procedures should be written/documented
– These serve many purposes, from training vehicle, to employee accountability standards, to mitigating factors in the case of an inadvertent violation
– Include “checks and balances”
• For example, does only one employee ever see international student records? If so, see DOJ report on DSO who (apparently with no bad intent) falsified student SEVIS records, faces serious criminal charges, and placed university at risk http://www.justice.gov/usao/ncw/press/briggs.html
– Many guides, resources, webinars–start with NAFSA, AILA, NACUA, other ass’ns.
– Consult peer institutions and colleagues for “best practices”
– Hire experts to create compliance programs and conduct training, mock audits, etc.
Preparing for the New Era: Steps, ctd.
34
5. Establish record/information release protocols
4. Establish agency visit protocols
3. Gather the players and plan ahead
2. Establish compliance practices
1. Know the rules
Who are the Players?
Legal counsel, risk officer, compliance officials, international office, human resources, etc.?
Gather the Players and Plan Ahead
• The officials who must be involved in responding to an agency inquiry or visit shouldn’t meet for the first time during that activity!
• Determine who would participate in common kinds of agency encounters
• Establish channels of communications, perhaps quarterly meetings
• Establish some general agreed-upon procedures
– For example, are all agency visits coordinated by legal counsel’s office, are all student records/information releases coordinated by registrar and employee records/information releases coordinated by human resources?
• While there are many specific scenarios to anticipate, there are also some broad categories involving a pretty short list of players
• “A stitch in time saves nine” and more!
Preparing for the New Era: Steps, ctd.
37
5. Establish record/information release protocols
4. Establish agency visit protocols
3. Gather the players and plan ahead
2. Establish compliance practices
1. Know the rules
Establish Agency Visit Protocols• Do you already have policies and procedures on this?
• If not, think about establishing some since “who speaks for the institution” and how it is done are important operational factors
– Can any employee call the newspaper or local TV station and step forward as a representative of the institution?
– For the same reasons, institutions need protocols for agency interactions
• These can be established so that they are not obstructive in any way but enhance the efficiency and effectiveness of such interactions for the agency and the institution
• A variety of models can work
• Once established, they must be made known to all employees, such as through orientation, training, announcements, etc.
Preparing for the New Era: Steps, ctd.
39
5. Establish record/information release protocols
4. Establish agency visit protocols
3. Gather the players and plan ahead
2. Establish compliance practices
1. Know the rules
What records must you keep, how best to keep them, how best to access
them, and when to share them?
Establish Record/Information Release Protocols • Do you already have policies and procedures on this?
• Many institutions have careful procedures established to comply with FERPA and conduct regular training for employees, etc.
• Despite what you might hear, FERPA still does apply to international students
– IIRIRA § 641(c)(2), the statute that underlies the SEVIS system, provides that “FERPA.-The Family Educational Rights and Privacy Act of 1974 shall not apply to aliens described in subsection (a) to the extent that the Attorney General determines necessary to carry out the program under subsection (a).”
• The program is now SEVIS, and the regulations were published to implement this exception (8 CFR 214.1(h)), apply this FERPA exception only to information that is required to be reported in SEVIS, so the exception does not apply to information that is not required to be reported in SEVIS
• You do not want overly “helpful” employees violating FERPA when the agencies come asking for information, and you don’t want them being “unhelpful” or demanding a subpoena and seeming to obstruct an investigation when the agency has the right to the information
• You do not want to be creating your policies and protocols “on the fly” during an agency visit, so develop them ahead of time
Record/Information Release Protocols, ctd. • Do you already have policies and procedures related to employee
record/information release?
• Many institutions have careful procedures established to comply with privacy laws and simply to respect the privacy of employees and conduct regular training for employees, etc.
• A variety of models can work
• A specific protocol—in addition to policy about what you will release without subpoena and to whom—is also helpful, such as having one official will handle/clear all student-related requests and another all handle/clear employee-related requests, for instance , or having legal counsel handle all
• Once established, the protocols must be made known to all employees, and the policies must be made clear to employees involved, such as through orientation, training, announcements, etc.
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