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The Concerning Prospect of USCIS/ICE Coordination on OPT Law Enforcement
U.S. Citizenship and Immigration Services (USCIS) released a statement on August 18, 2020 reminding foreign students and their DSOs that they must timely update students’ OPT employer information in SEVIS or risk violating their F-1 nonimmigrant status.
ICE has started issuing warning letters to students after USCIS’s August 18 announcement
Soon after the announcement, our firm began receiving reports from students in OPT status about being sent warning letters from U.S. Immigration and Customs Enforcement (ICE) notifying them of their failure to report their OPT employer and exceeding the permissible period of unemployment.
The announcement and warning letters signal that the Department of Homeland Security (DHS) is adopting a more proactive and aggressive stance toward enforcing the F1 student visa rules, creating heightened risks for foreign students in OPT that they should take care to avoid.
The August 2020 announcement was made not long after the DHS’s recent defeat in a federal lawsuit over its 2018 unlawful presence policy memo
The announcement comes in the wake of a recent ruling striking down as unlawful USCIS’s August 9, 2018 Policy Memorandum, PM-602-1060.1, titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” in which the agency attempted to change its policy on how to calculate unlawful presence. See Guilford College et al v. Chad Wolf, U.S. Department of Homeland Security et al , No. 1:18CV891 (M.D. N.C. Feb. 6, 2020).  Under the August 2018 PM, an F, J, or M nonimmigrant began accruing unlawful presence the day after he engaged in an unauthorized activity. This meant that minor violations could immediately start the “clock” of unlawful presence, potentially resulting in a three- or -ten-year reentry bar for periods of unlawful presence exceeding 180 or 365 days, respectively.
By invalidating the PM, the court in effect reinstated USCIS’s prior policy, under which the unlawful presence clock begins running only after an immigration judge or USCIS adjudicator makes a formal finding of a status violation. See USCIS May 6, 2009 Interoffice Memorandum, “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act.”
The court’s decision puts USCIS’s prior policy back into effect, but DHS has adopted new methods of implementation
After the court’s decision, USCIS policy once again is that unlawful presence begins accruing only after an immigration judge or USCIS adjudicator makes a formal finding that a nonimmigrant has violated his status.
Until the August 2020 announcement, DHS normally made the formal finding of a status violation during the adjudication of an application for a benefit with USCIS, such as an application for change of status.
In light of the August 2020 announcement, however, the warning letters indicate that DHS is more rigorously enforcing the OPT rule through ICE. As mentioned above, ICE has begun proactively issuing letters to F-1 students in OPT notifying them of their failure to report their OPT employer and exceeding the permissible period of unemployment. The letter points out that “federal regulations limit permissible periods of unemployment to an aggregate of 90 days for the 12-month OPT period” and warns:
If your SEVIS record is not updated within 15 days of the date of this notice, SEVP will set your SEVIS record to “terminated” to reflect the lack of employer information and the potential that you may have violated your status either by failing to timely report OPT employment or by exceeding the permissible period of unemployment while on OPT.
Do the ICE notification letters start the accrual of unlawful presence for F-1 students?
Since the notices are being sent to students who may have already exceeded the permissible period of unemployment, the question arises whether the letters constitute the kind of formal finding by an adjudicator that begins the accrual of unlawful presence. Although DHS has not directly addressed the issue, current USCIS policy and relevant federal regulations make it unlikely that the letters will be treated as triggering unlawful presence.
First, the letters likely do not trigger unlawful presence because the agency issuing them is ICE, whose function does not include “adjudicating” requests for immigration benefits. Under current USCIS policy, unlawful presence begins accruing only after an immigration judge makes a determination of a nonimmigrant status violation in exclusion, deportation or removal proceedings, or a USCIS adjudicator makes a formal finding during the adjudication of a request for an immigration benefit that a nonimmigrant has violated his status.Here, ICE is a law enforcement agency. Due to the clear division of functions between the agencies, ICE’s letter should not be viewed as fulfilling any kind of USCIS adjudicative function within the meaning of USCIS’s policy. Thus, it is unlikely that the letter qualifies as the kind of formal finding by a USCIS adjudicator that triggers unlawful presence under current policy.
Second, the regulations state that the initiation of removal proceedings against an alien through the filing of a notice to appear (NTA) does not trigger the accrual of unlawful presence. See 8 C.F.R. §239.3. USCIS’s 2009 policy memo, which is back in effect after the district court’s ruling in Guilford College, confirms this when it states, “It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day in which removal proceedings are initiated. Removal proceedings have no impact on whether an individual is accruing unlawful presence.” USCIS May 6, 2009 Interoffice Memorandum. If the filing of an NTA has no effect on an individual’s accrual of unlawful presence, then ICE’s notification letter, the stated purpose of which is merely to warn the alien that he is at risk of violating his status and being placed in removal proceedings, a fortiori should not trigger unlawful presence either. 
The effects of the announcement and DHS’s new methods of implementation remain to be seen
Aside from the letter, F1 students in OPT who fail to adhere to the SEVIS reporting requirements must also ask what happens if ICE coordinates with USCIS to revoke their Employment Authorization Documents (EAD) on that basis, as USCIS stated it could do in its August 18, 2020 announcement.
Section 205 of the Immigration and Nationality Act confers on DHS the authority to revoke “petitions.” So far, USCIS has limited the exercise this authority to the adjudication of immigrant and nonimmigrant petitions. The revocation of OPT EADs, on the other hand, presents a different situation that may have unexpected implications on an individual’s status with regard to unlawful presence. The effect of status violation findings made by USCIS outside the adjudication process for petitions remains to be seen. If such findings are found to trigger unlawful presence, then this would reflect a growing and disturbing trend of USCIS stepping outside its adjudicatory role and becoming more involved in an enforcement role, which is currently being challenged in cases like ILRC v. Wolf.
DHS proposes regulation to eliminate duration of status for F, J, and I nonimmigrants
On September 25, 2020, soon after our firm began receiving reports about the warning letters, DHS announced a proposed regulation that would eliminate “duration of status” for international students, exchange visitors and representatives of foreign information media.  The proposed regulation would subject F, J, and I nonimmigrants in the United States to fixed periods of stay and require them to apply for an extension of stay to continue their activities beyond their admission period.
In a system that is already extremely complex for international students, this proposed rule would undoubtedly create a higher degree of uncertainty. We will analyze the new proposed rule and explain its implications in another article that will be posted soon.
 The U.S. District Court handed down the decision on February 6, 2020. A subsequent appeal by DHS was dismissed by the Fourth Circuit Court of Appeals on August 3, 2020.
 ICE’s notification letter identifies the consequences of failing to take corrective action as the alien’s SEVIS record being set to “terminated,” the potential that the alien may have violated his status, and the initiation of immigration proceedings to remove the alien from the United States.
 See Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media, 85 Fed. Reg. 60526 (proposed September 25, 2015) (to be codified at 8 CFR pt. 214, 248, and 274a.12).