Immigration & Visa Updates

USCIS Updates Policies Related to Requests for More Information for Applications – Effective September 2018

The USCIS has updated their policies related to issuance of the Request for Evidence (RFE) and the Notice of Intent to Deny (NOID) for immigration applications. These new policies are effective for applications filed on or after September 11, 2018. In the past, the USCIS would only deny an application without first issuing an RFE or an NOID if the documentation showed evidence that violated laws or if there was deemed to be no possibility of approval.

The new guidance gives the USCIS adjudicator the discretion to deny an application without issuance of an RFE or NOID if the required documents are not submitted with the application. Thus, it is important to provide the documentation requested for immigration applications. Also, if someone has violated their status, such as working without authorization, that may result in a NOID. Experience has shown that there are more issues with applications submitted at the last minute, so it is important to begin the application processes as early as possible, to allow for more options in case an application is denied.

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USCIS Changes Policy Relating to Unlawful Presence for Fs and Js – Effective August 2018

On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum changing when individuals present in the U.S. as international students (Fs) or exchange visitors (Js) begin to accrue unlawful presence. In the past, Fs and Js did not begin accruing unlawful presence until either USCIS formally found that the individual had violated his/her nonimmigrant status while adjudicating a request for another immigration benefit or an immigration judge ordered the individual deported. Under the new policy, individuals in F or J status will begin to accrue unlawful presence the day after they stop pursuing their course of study or authorized activity, the day after they engage in an unauthorized activity, or the day after completing their course of study or program (including any authorized practice training and any authorized grace period).

This change is significant as it could affect students’ and exchange visitors’ eligibility to change to a different nonimmigrant status, seek permanent resident status, and/or return to the United States if they travel abroad after accruing a certain number of days of unlawful presence. USCIS’s new policy will go into effect on August 9, 2018.

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Notice To Appear May Be Issued With A Denial of Application to USCIS – July 2018

The USCIS updated their internal guidance about when they will issue a Notice to Appear (NTA), which initiates removal (i.e., deportation) proceedings. In addition to issuing this document for those cases involving criminal activity, involvement in fraudulent activities, or national security concerns, the USCIS has added another basis for the issuance of the NTA – when someone becomes unlawfully present when an application has been denied. This can occur when an application is filed, and the current status expires while the application is pending. In the past, when there was such a denial, the USCIS generally indicated that the applicant who was denied the benefit had to leave the country within 30 days from the denial. Now, the denial could trigger initiation of deportation proceedings and the individual would not be able to leave the US while these proceedings are occurring or they will have severe repercussions in the future.

To avoid the serious consequences of a possible denial of an application filed with USCIS, nonimmigrants and sponsoring departments should file applications as early as possible and use expedite processes, when available, if the application is pending close to the end date of the current status.

For further questions, contact the Office for International Students and Scholars (OISS).

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Travel Ban: Supreme Court Ruling Allows for Restrictions on Travel – June 2018

On June 26, 2018, the US Supreme Court upheld President Trump’s Presidential Proclamation of September 24, 2017 which restricted travel to the United States for those from specified countries. This proclamation is commonly referred to as the “travel ban” and does not affect students or scholars who are currently in the United States, but places restrictions on those who are applying to enter the country. Because of the Supreme Court decision, the restrictions are in place are expected to be enforced indefinitely, as there is no expiration date

The countries affected are Iran, Iraq, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The nationals of each country are subject to certain conditions, as outlined below:

Iran

    • Suspended entry as an immigrant
    • F and M students and J Exchange Visitors may enter the US, but they will be subject to “enhanced screening and vetting requirements.”
    • Entry under other types of visas is suspended

Iraq

  • Will be subject to additional scrutiny in the visa process

Libya

  • Suspended entry as an immigrant
  • May not enter on visitors visas (B-1, B-2 or B-1/B-2)
  • May enter under other types of nonimmigrant visas

North Korea

  • Suspended entry as an immigrant
  • Suspended entry in all nonimmigrant visa categories

Somalia

  • Suspended entry as an immigrant
  • “Visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”

Syria

  • Suspended entry as an immigrant
  • Suspended entry in all nonimmigrant visa categories

Venezuela

  • Suspended entry for visitors visas (B-1, B-2 and B-1/B-2) for officials of government agencies in Venezuela involved in screening and vetting procedures, and their immediate family members
  • Other nationals of Venezuela should be “subject to appropriate additional measures to ensure traveler information remains current.”

Yemen

  • Suspended entry as an immigrant
  • Suspended entry for visitors visas (B-1, B-2 and B-1/B-2)
  • May enter under other types of nonimmigrant visas

The Proclamation does not apply to:

  1. Any lawful permanent resident of the United States;
  2. Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date of the Proclamation;
  3. Any foreign national who has a document other than a visa, valid on the applicable effective date of the Proclamation, or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as advance parole;
  4. Any dual national of a country designated under the order when traveling on a passport issued by a non-designated country;
  5. Any applicant traveling on an A-1, A-2, NATO-1 through NATO-6 visa, C-2 for travel to the United Nations, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification;
  6. Any foreign national who has been granted asylum;
  7. Any refugee who has already been admitted to the United States;
  8. Any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Those who are subject to a bar on entry based on this Proclamation may apply for a waiver on the basis of the following criteria:

  1. Denial of entry would cause the undue hardship to the foreign national;
  2. The entry of this individual would not pose a threat to the national security or public safety of the United States; and
  3. The entry would be in the national interest.

Students or scholars from any of these eight countries to come to the OISS and speak to their advisor before making any plans to travel abroad.

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Current Status of Deferred Action for Childhood Arrivals (DACA) – February 2018

Because of court rulings, those who have previously been approved for DACA are eligible to file for renewals of their DACA status and for work permission, but new applications are not being accepted from applicants that have never been granted DACA. The latest information about DACA is available on the USCIS website at https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction. At the present time, DACA is operating under the many of the same rules that were in effect prior to September 5, 2017, when it was rescinded (see below for changes).

Those who have previously been on DACA can apply to renew the DACA status and the work permit and DACA is generally approved for two years at a time. Even though advance parole for travel outside the US may have been granted in the past, USCIS is no longer approving or accepting applications for advance parole. Those who had previously been granted DACA status which expired on or after September 5, 2016 are still eligible to file their DACA extension as a renewal request. Those whose DACA status expired before September 5, 2016 or those whose most recent grant of DACA was terminated are eligible to apply for an extension of DACA, but may not do so as a renewal; instead, those previous DACA recipients must file a new initial DACA request according to procedures outlined on the USCIS website (see above link).

If an Employment Authorization Document (EAD) for someone under DACA has been lost, stolen or damaged, it is possible to apply for a replacement document by filing an I-765 form.

The USCIS will make decisions about eligibility for DACA based on the guidelines in the following memo: https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

Students and scholars who feel that they may be eligible for DACA should consult with immigration counsel with questions. The OISS can provide information about resources for immigration assistance in the St. Louis community, if needed.

For those on DACA who have concerns about immigration or housing issues, the Office for International Students and Scholars can be a resource. There is also helpful information on the website of the Washington University Center for Diversity and Inclusion (CDI) at https://sites.wustl.edu/diversityinclusion/resources/undocumented-student-resources/.

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USCIS issues new guidance about changing to F-1 status – February 2018

Previously an incoming student could apply for a change of status to F-1 and once the change of status application was submitted, the student no longer had to worry about maintaining their previous status. In February USCIS issued new guidance which indicates that an incoming student must maintain their previous status until the F-1 status is granted.

This guidance makes changing status within the U.S. to F-1 visa difficult, if not impossible, in certain situations for two reasons. First, it is difficult to predict how long it will take until the F-1 status is granted (e.g. currently it is taking 10 months). And, because a student is required to begin studies within 30 days after the F-1 status has been approved, it is uncertain that a student would be able to enroll in that required time period when it is uncertain when the F-1 will be granted. Secondly, not all statuses can be maintained and extended throughout the processing time. Thus, in many cases, the best and sometimes only option, will be for the student to leave the U.S., apply for an F-1 visa in their home country, and then reenter to begin the academic program no earlier than 30 days before the academic start date.

If a student chooses to attempt to change status to F-1 within the U.S., the student will need to consult an experienced immigration attorney regarding the change of status process, the timing of the application and any extensions of the current status that might be required. The attorney would also then be able to respond to any Request For Evidence (RFEs) if needed. The Office for International Students and Scholars cannot advise students on the change of status process.

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General Advice

Now, as always, it is particularly important that students and scholars maintain their status while in the US and that they carry the necessary documents when re-entering the US (for example, for F-1s, an I-20 recently endorsed for travel on page 2). Please note that when an international student or scholar attempts to enter the US, the border officials may ask for access to their cell phone or computer. Customs and Border Protection (CPB) agents are allowed to search cell phone and computers for contacts, past calls, social media posts and internet activities. CBP is also allowed to ask any questions deemed necessary to determine eligibility for entry, including questions about a traveler’s religion and political opinions.

If you have any concerns about your travel plans and immigration matters, please speak with an OISS Advisor during walk-in hours, or you can contact us or email oiss@wustl.edu.