USCIS Changes Policy Relating to Unlawful Presence for Fs and Js – May 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.
Supreme Court Decides Not to Rule on DACA Case – February 2018
On February 26, 2018, the Supreme Court decided not to take up the Trump administration’s case on DACA, ruling that the appeals courts should take up the case first. Lower courts had blocked the federal government from ending the DACA program, so this Supreme Court decision continues the DACA program for now, even after the announced end date of March 5, 2018. Until the courts decide otherwise or Congress passes a law relating to undocumented persons who entered the US as children, the DACA status will continue.
For information about how to renew that status, go to the USCIS website. Note that the USCIS is not taking new applications for DACA status, but those who are currently in DACA status can apply to renew.
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.
Additional Update regarding DACA – January 2018
On January 15, 2018, the US Citizenship and Immigration Service (USCIS) announced that, due to the preliminary injunction from the federal court, they will again be adjudicating applications for Deferred Action for Childhood Arrivals (DACA) under the same terms that were in place before DACA was rescinded on September 5, 2017. Those who were previously granted deferred action under DACA are eligible to renew their status, ad to request a work permit. The USCIS is not accepting requests for deferred action under DACA to those who have not previously been granted this status, nor are they accepting or approving applications for advance parole (for travel outside the US) for those who are in DACA status.
If someone received DACA and their status expired on or before September 5, 2016, they are still eligible to request an extension, but DACA must be requested as an initial request, rather than as a renewal. For more details on the application process, go to the following information on the USCIS website or consult with immigration counsel:
Update regarding DACA – January 2018
On September 5, 2017, President Trump’s Administration announced rescission of the Deferred Action for Childhood Arrivals (DACA) program. Following this announcement various lawsuits were filed challenging rescission of the program. On January 9, 2018, a federal judge in California issued a nationwide order reinstating the DACA program for individuals who have already applied for and received benefits under the program. The order directs the Department of Homeland Security to post reasonable public notice and prescribe a process to resume receiving DACA renewal applications for these individuals. As of January 11, 2018, the U.S. Citizenship and Immigration Services (USCIS) DACA webpage indicates that information on renewal applications is forthcoming. Until additional information is released by USCIS, the American Immigration Lawyers Association recommends that DACA beneficiaries wait to file renewal applications in order to avoid the possibility of any confusion or delay in processing. Please also note that the order does not reinstate the DACA program for individuals who do not already possess DACA status. The Court’s order will remain in place until a final judgment or other order is issued in the case.
Update regarding the Turkey – January 2018
U.S. consulates in Turkey have now resumed full visa services. For more information, please see the Statement from the U.S. Mission to Turkey on the Full Resumption of Visa Services.
Update regarding the Travel Ban – December 2017
The Supreme Court justices approved a request from the President’s lawyers to enforce the President’s order banning travel to the US by residents of six mostly Muslim countries (Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela). This allows for full enforcement of the travel ban while the legal challenges continue. This means that the 9/24/17 presidential proclamation will go into full effect while the appeal is pending in the 9th and 4th Circuits. A panel of the U.S. Court of Appeals for the 9th Circuit is set to consider the Hawaii case, and the U.S. Court of Appeals for the 4th Circuit in Richmond will consider the Maryland judge’s decision this week.
See Travel Ban Update: Presidential Proclamation – September 2017 for details related to each country included in the proclamation.
Update to the Presidential Proclamation – October 2017
President Trump issued a Presidential Proclamation on 9/24/2017 outlining new restrictions about travel, which had an effective date of October 18, 2017. These countries include Chad, Iran, Iraq, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.
Two federal judges have halted President Trump’s Proclamation with federal injunctions. The District Court in Hawaii issued a nationwide restraining order and the Maryland judge issued a preliminary injunction.
This is a federal challenge to the Presidential Proclamation and this litigation that was brought to challenge the Presidential Proclamation was brought only to six countries to include Chad, Iran, Iraq, Libya, Somalia, Syria and Yemen. This means that the travel ban is in effect for Venezuela and North Korea.
What this means is that for those six countries (Chad, Iran, Iraq, Libya, Somalia, Syria and Yemen), it’s as if the Presidential Proclamation never existed. So for now, people from those countries can apply for visas. People form North Korea and Venezuela are subject to the Presidential Proclamation. For Venezuela, the Presidential Proclamation is in effect and suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2). For North Korea, the Presidential Proclamation suspends the entry of all immigrants and nonimmigrants.
The federal government has appealed the Hawaii case and the appeal will go up to the Circuit court level (9th Circuit). The merits have to be decided to determine if this Presidential Proclamation is constitutional.
It is our advice for students and scholars who are in the US to remain in the US and maintain their status. For those who have to travel, please check with your OISS advisor before you make your travel plans. As you can see, this situation is very fluid and things could change at any given notice.
Travel Ban Update: Presidential Proclamation – September 2017
President Trump issued a Presidential Proclamation on 9/24/2017 outlining new restrictions about travel, which will take effect October 18, 2017. These countries include Chad, Iran, Iraq, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. This ban has no effect on students or scholars who are presently in the US.
Foreign nationals who were subject to the previous travel ban (Executive Order 13780 issued in March 2017) and who lack a credible bona fide relationship with a person or entity of the US took effect on 9/24/2017. Those individuals with a “bona fide” exception, such as a foreign grandparent of a US citizen or a student or scholar studying and/or working at a US university, can still apply for visas until October 18, 2017. After that date, the new restrictions will apply. This new “travel ban” has no expiration date and is expected to remain indefinitely. It is also condition based and not time based, which means that countries that are not in compliance with US federal requirements will stay on the restricted list until they make the necessary changes and come into compliance. The reason given by the administration for these new restrictions is because these countries have been deemed to have “inadequate identity management protocols, information-sharing practices, and other risk factors.”
The following countries and conditions are included in the proclamation:
- Chad: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
- North Korea: Suspends the entry of all immigrants and nonimmigrants.
- Venezuela: Suspends the entry of certain government officials and their family members on business or tourist visas (B-1/B-2).
Countries impacted by earlier bans which are included in this most recent proclamation:
- Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they are subject to enhanced screening.
- Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
- Somalia: Suspends the entry of immigrants, and requires enhanced screening of all nonimmigrants.
- Syria: Suspends the entry of all immigrants and nonimmigrants.
- Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
- Iraq: Requires enhanced screening of all individuals seeking to enter the United States.
Nationals of Sudan, who were impacted by earlier versions of the travel ban, are not included in the proclamation.
Students and/or Scholars who have visas to enter the US will not be affected by this proclamation immediately. They should, however, enter the US by 10/18/2017.
Additional exceptions to the proclamation include:
- Lawful permanent residents of the US;
- Any foreign national who is admitted to or paroled into the US on or after the effective date of this proclamation;
- Any foreign national who has a document other than a visa, valid on the effective date of this proclamation or issued on any date thereafter, that permits him or her to travel to the US and seek entry or admission, such as advance parole document;
- Any dual national of a country designated in this proclamation when the induvial is traveling on a passport issued by a non-designated country;
- Any foreign national traveling on diplomatic or diplomatic type visa;
- Any foreign national who has been granted asylum; any refugee who has already been admitted to the US, or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
The Supreme Court granted certiorari on June 26, 2017 agreeing to hear the case challenging the Executive Order (Trump v. IRAP). The Supreme Court has now issued an order removing the case from the oral argument calendar. It directed both parties to file briefs by 10/5/2017 addressing “whether, or to what extent, the presidential proclamation issued on 9/24/2017 may render the case moot.”
This is a complicated and very fluid situation. We urge our 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.
Travel Ban – January 2017
On January 27, 2017 and again on March 6, 2017, President Donald Trump issued Executive Orders which were referred to as “travel bans” on entry into the United States by students from certain countries. However, in regards to both Executive Orders, the courts have now blocked their implementation. There may be additional legal action by the Executive branch to challenge these court rulings. But at the moment, neither Executive Order is being implemented. We are still recommending that students and scholars from any of the seven countries (i.e., Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) specified in the first Executive Order avoid travel at this time and, if travel is necessary, speak in person with an OISS Advisor before finalizing travel plans.
Information for Individuals in DACA Status
On September 5, 2017, President Trump announced that he would be winding down the program for Deferred Action for Childhood Arrivals (DACA). The Department of Homeland Security provided a memorandum of Frequently Asked Questions. Below is a summary of the details of this announcement:
- The US Citizenship and Immigration Services (USCIS) is no longer accepting new applications for DACA, but will review any new applications received on or before September 5, 2017. Any new DACA applications received after September 5, 2017 will be returned.
- Those who are currently on DACA, whose benefits expire between September 5, 2017 and March 5, 2018, can apply for an extension of their benefits, but the extension application must be filed by October 5, 2017. After October 5, 2017, applications for extension of benefits will be rejected.
- Those who are currently on DACA will be allowed to remain in this status until the end of their authorized period of DACA. During this time their work authorization will remain in effect until the employment authorization document expires, unless it is terminated or revoked. Generally DACA is granted for two years from the date of issuance.
- 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.
- DACA recipients will no longer be able to file for Advance Parole, which allows for travel outside the United States while under DACA.
- Those under DACA who have a valid grant of Advance Parole generally retain that benefit until it expires. However, admission to the United States is not guaranteed when someone leaves the country, and this benefit may be revoked or terminated at any time. Thus, those on DACA who are considering leaving the US should consult with immigration counsel before making travel plans.
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://diversityinclusion.wustl.edu/resources/undocumented-student-resources/.
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.