“Compliance” isn’t a dirty word, even if it makes employers and administrators nervous. As immigration lawyers who work with employers and institutions of higher learning, we help companies put processes in place to make sure that their employees and students are in compliance with immigration laws. Site visits from U.S. Citizenship and Immigration Services (USCIS) are one compliance enforcement tool that they use to detect fraud as agents make actual physical visits to make sure there is a real job filled by a real person that is consistent with the petition filed and attestations made.
These visits have always prompted anxiety, but the current immigration climate makes it worse. When the Massachusetts Institute of Technology (MIT) notified faculty, administrators and employees that federal agents would soon be on campus to check the status of foreign postdoctoral students, researchers, and visiting scholars working in the sciences, people were concerned that they, their friends, and their students might be under investigation. According to The Boston Globe, director of MIT’s international scholars office Penny Rosser explained to the school that agents would visit “to confirm that the employer has sufficient resources and supervisory personnel to effectively provide the training, and that the foreign national is appropriately engaged in that activity.” In a memo, she also explained that agents would likely give MIT 48 hours’ notice but that they didn’t have to, so the MIT community needed to make sure that students’ visa documentation was up to date. Rosser also made clear that agents could also ask to see workplaces including laboratories and ask about foreign students’ salary.
Despite the anxiety the visit caused, MIT issued a statement reaffirming its commitment to its place in international marketplace of ideas. “MIT has been clear about the value of our global community and of the free flow of scientific ideas,” the school said in a statement. “We are grateful for the dedication, imagination, and perseverance of every scholar here at MIT.”
The current immigration climate charges such a visit with concern because in an area of law as specific and technical as immigration law, the concern always lingers that an unchecked box on a form or ill-worded response might lead to disproportionate consequences, and the seeming randomness of visits prompts institutions to fear that they have done something to earn the scrutiny. Last August, Immigration and Customs Enforcement (ICE) announced that it was stepping up the number of site investigations for employers who are providing international students receiving STEM OPT—optional program training in the fields of science, technology, engineering and math. In those cases, the visits seem to be motivated by two concerns. They're worried that foreign nationals that enter the country as students may have nefarious, covert plans. In December, a Chinese national was caught trying to smuggle cancer cells from the lab he worked at in Boston home to China, where he planned to finish the work and claim credit for it. According to The New York Times, ICE is investigating hundreds of cases where Chinese nationals are suspected of being involved in intellectual property theft.
There are also concerns that employers may use students receiving STEM OPT instead of hiring American workers, so site visits ensure that they’re being paid properly and that they have a clear program of activities that has a target and an end date. Still, the enhanced investigation of students receiving STEM OPT provide for more penalties for students than employers, and that dissonance fuels anxiety.
This administration has made life more complicated for students in the United States on an F-1 visa and it’s not getting easier. Students with F-1s need to stay in contact with their international student offices to make sure that their campus life and work life remain in compliance. Schools need to review their processes to make sure that they are in a position to withstand site visit scrutiny. Similarly, employers and employees entering into the hunger games also known as the 2021 fiscal year H-1b lottery should take the time to review their own attestations, wage rates, and paperwork.