Immigration Customs Enforcement’s (ICE) Student Exchange and Visitor Program (SEVP) appear to be increasing the number of periodic reviews of SEVIS-Certified schools with a particular emphasis on English as a Second Language (ESL) schools. During these reviews, SEVP will issue a compliance letter to the school. This letter will also contain a list of student records that SEVP would like to review. After the school responds to the compliance request, SEVP may issue a Notice of Intent to Withdraw (NOIW) if it appears that the school may not be fully complying with every part of the F or M regulations. SEVP then allows the school 30 days in which to respond to the NOIW. If the school still cannot evidence its full compliance with the program, SEVP will then issue a Withdraw on Notice from the SEVIS System. The notice will contain specific instructions about the last date on which the school may use the SEVIS System and the procedure for transferring students from its school to another SEVIS-Certified school. The periodic review (which is now known as an out-of-cycle review after October 27, 2008 under the recently issued final regulation) will not affect the school’s recertification process which SEVP has indicated will commence next year and will then be held every two years. If the school successfully evidences its compliance with the program in the periodic review process, it will still be required to complete the recertification process. If SEVP commences a periodic review of a school, it is strongly recommended that the school contact its General Counsel’s office or outside legal counsel’s office to obtain the necessary assistance to respond to the inquiry from SEVP.
During a recent audit being conducted by the U.S. Department of Labor (DOL) of an H-1B employer’s compliance with the DOL’s Labor Condition Application (LCA) regulations, the DOL’s Wage Enforcement Investigator indi-cated that H-1B investigations by the DOL have greatly increased within the past year. The investigator specifically mentioned that the number of audits being conducted against employers located in the Chicagoland area has been greater than the number of audits being conducted in many other metropolitan areas. Although the DOL cannot independently commence an audit, the DOL investigator stated that the number of complaints being received by interested parties has increased and this has led to an increase in the number of audits. Due to the complexities in the H-1B program, the DOL’s Wage and Hour Division has also been holding informational sessions for H-1B employers around the country. These sessions provide employers with detailed information about the documenta-tion that they must maintain in order to evidence compliance with the program and many of the reoccurring issues that the DOL encounters with employers during audits. The DOL hosted one of these seminars in Oakbrook, Illinois this past August.