Why Does the Biden Administration Fear Transparency in Immigration Data?

ICE's unpersuasive response regarding information on foreign student fraud

By Jon Feere on May 14, 2021

The Biden administration is likely to continue its assault on transparency in immigration data. This week, Bloomberg Law is reporting that “The types of visa data released to the public are likely to change now that the Biden administration has revoked former President Donald Trump’s ‘Buy American, Hire American’ executive order, particularly when it comes to employer participation in hiring visa workers.” Citing an online H-1B database and foreign student datasets, Bloomberg explains that the Biden administration “has already hinted that agencies will take a different approach to the release of visa program data.”

In April 2019, U.S. Citizenship and Immigration Services (USCIS) launched an H-1B Employer Data Hub to provide information to the public on employers petitioning for H-1B workers. Bloomberg notes that two other datasets that are a sign of this anti-transparency movement include “the most recent annual report on the Student and Exchange Visitor Program, which omits previously public information on which companies are employing F-1 visa holders via the optional practical training program, and the demographic and educational data of selectees in the H-1B visa lottery that has been available in the past but has yet to be released by USCIS.”

We highlighted the problematic movement away from transparency on the Optional Practical Training (OPT) data in a recent blog post. The unit at U.S. Immigration and Customs Enforcement (ICE) that has been producing the data on foreign student employment provided no explanation for its decision to not include the list of top employers in the OPT program at the time, but has now provided this quote to Bloomberg: “data sets may vary from year to year due to law enforcement sensitivities or other reasons.”

The “law enforcement sensitivities” argument is not compelling, since this data has been published for the past three years. Plus, the Biden administration has now prohibited ICE from making arrests for immigration violations in most instances. Thus far, ICE has arrested only 15 aliens acting in violation of OPT regulations under Operation OPTical Illusion (launched last year, under the Trump administration). The “other reasons” argument — which should be interpreted as “a change in administrative views on transparency” — is the more likely reason ICE has not published the 2020 employer data online.

The "law enforcement sensitivities" argument is likely meant to indicate that ICE is concerned that publication of this data may result in tipping off the aliens about forthcoming arrests. Here’s the issue: The list of top employers in the OPT program contains a number of “employers” that don’t actually exist. Thousands of foreign nationals who obtained F-1 (student) visas have come to the United States, attended school for a period of years and graduated, and then obtained work permits (while still on their student visas) via the controversial OPT program, which allows these individuals to remain in the United States after graduation for up to three years per degree (for a maximum of six years) for those who have studied in a degree that is related to science, technology, engineering, or mathematics.

After comprehensive OPT data was published online, reporters examined it and easily discovered that the U.S. Department of Homeland Security (DHS) was being lied to by countless foreign nationals for years on end (see, e.g., “Thousands of Foreign Students May Have Overstayed Visas Through Employment at Possible Shell Companies”, NBC News, November 27, 2019). These fraudsters, most of whom are from China and India, apparently had little concern about about entering fraudulent information into the Student and Exchange Visitor Information System (SEVIS), one of the most significant post-9/11 national security systems created by DHS.

I don’t find the "law enforcement sensitivities" argument compelling because the aliens who have lied to DHS and entered fraudulent information into the SEVIS database are obviously already aware that they have lied to DHS. It’s possible that some will start to enter different fraudulent companies into the SEVIS system, but this program is overseen by ICE special agents within Homeland Security Investigations — dozens of whom are funded by fees paid by foreign students and schools — and they obviously need to be taking a much harder look at this program anyhow.

I am reminded of a situation that arose when I was at ICE attempting to get the 2019 OPT data published. It was suggested by some career staff that we not include the fraudulent employers in the tables. I explained that the list of top 200 OPT employers is simply meant to be a virtual cut-and-paste from the SEVIS database and that we shouldn’t remove employers that we believe to be fraudulent unless ICE is prepared to say, with absolute certainty, that those employers are, in fact, fraudulent, and also prepared to make hundreds of arrests immediately. I also explained that if we were to remove the names of fake employers from the list, Congress and the media would naturally assume that ICE had cleaned up the problem. Because ICE had not made hundreds of arrests (and still hasn’t) I was not going to allow the agency to simply sweep the problem under the rug and pretend as if there isn’t a serious national security threat within OPT.

I am hopeful that ICE special agents are gearing up for the next phases of Operation OPTical Illusion, with hundreds of arrests across the nation and reprimands (if not prosecutions) of school officials who have signed off on fraudulent employment. But the Biden administration’s anti-enforcement policies are likely going to result in this mass fraud continuing, if not expanding.

My guess is that ICE has not published the 2020 OPT employer data because it looks even worse than prior years. It might be that fraudulent employers now make up an even greater portion of the OPT program, and the Biden administration doesn’t want the public to see how much of a public safety threat the OPT program has become. Without the data, we are left to speculate.

It’s also possible that companies using OPT have lobbied ICE or DHS to stop reporting the data. As an immigration attorney told Bloomberg, “There’s a fine line between sort of publicly releasing the data in a way that policy people can use to provide analysis of the program [vs. a] name and shame” approach. A simple list of top employers using OPT to obtain foreign labor is not shaming, but perhaps immigration attorneys and big employers don’t want the public to see how they’re using this federal program. It would be a shame if the Biden administration is influenced in this way by corporate lobbyists.

Sen. Grassley (R-Iowa) sent a letter to DHS asking for the missing OPT data to be released by May 5, 2021. Thus far, he has not received a response.