ICE sting operations against foreign students: a warning for employers?
The recent sting operation conducted by Immigration and Customs Enforcement (ICE) to catch foreign students that illegally secure Curricular Practical Training, or CPT, serves as a poignant reminder to employers about the potential pitfalls of hiring or continuing to employ these students.
In its undercover investigation, ICE set up a phony university, a Michigan-based school called the University of Farmington, that advertised “innovative” CPT programs for STEM (science, technology, engineering and math) graduates and offered enrollment with flexible classes that would not disrupt their careers. Prosecutors allege, however, that this fake university was a “pay-to-play” scheme that allowed foreign students to continue to live and work in the United States without satisfying the normal requirements that the immigration laws impose on all students seeking CPT.
This is not the first time that the government has leveraged this type of scheme. In 2013, the Department of Homeland Security created the University of Northern New Jersey to investigate foreign student visa fraud. The government has also raided legitimate schools it suspected of abusing the CPT process. In July 2011, for example, ICE raided the former University of Northern Virginia because it suspected that the school was issuing CPT to foreign students without following legal requirements.
Foreign students who secure CPT from these questionable programs face criminal charges and loss of lawful status, which puts them at risk for deportation. The question not addressed so far, however, is the potential liability of their employers. Ordinarily, employers that rely on a student’s CPT documentation should not be subject to civil or criminal liability, as long as the documentation reasonably appears to be genuine, and they have no reason to suspect the student secured the documentation unlawfully. Nevertheless, the widely disseminated news regarding ICE operations targeting fake universities or suspected violators could lead government authorities to assert that an employer knew or should have known that some documentation was illegally procured.
It is also important to note that employers referring candidates or employees to other employees who secured CPT in this manner may risk liability for aiding or abetting immigration violations. Likewise, employers that provide letters in support of such candidates for submission to the government may face liability for having made a false statement.
The bottom line is that employers need to devote more due diligence to all aspects of employing F-1 students under the CPT and Optional Practical Training (OPT) programs as part of their immigration compliance efforts.
Robert S. Groban, Jr., is a Partner and manages the New York office of Berry Appleman & Leiden LLP.
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