Skip links

Main navigation

USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a revised final Policy Memorandum related to unlawful presence after considering feedback received during a 30-day public comment period that ended June 11, 2018. F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the non-national (“alien”) had already started accruing unlawful presence.

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Please do note, F-1 students are eligible for Practical Training (OPT/CPT/STEM OPT) under F-1 visa status if the eligibility criteria for practical training is met. F, J, M students also have 60 days and 30 days grace period, respectively, after completion of study program or after the completion of Practical Training in case of F-1.

Under the revised final policy memorandum, effective Aug. 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS had posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised final memorandum published today supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

Foreign students who are no longer properly enrolled in school are violating the terms of their student visa would incur unlawful presence ground of inadmissibility. For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act. Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.

An F-2, J-2, or M-2 nonimmigrant’s period of stay authorized ends when the F-1, J-1, or M-1 nonimmigrant’s period of stay authorized ends. In addition, an F-2, J-2, or M-2 nonimmigrant’s period of stay authorized may end due to the F-2, J2, or M-2 nonimmigrant dependent’s own conduct or circumstances.

 

In addition, the revised final policy memorandum references to the Board of Immigration Appeals (BIA) issuing orders of removal in the first instance.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

USCIS Updates Notice to Appear Policy Guidance to Support DHS Enforcement Priorities

Washington, DC. U.S. Citizenship and Immigration Services issued updated Guidance today that aligns its policy for issuing Form I-862, Notice to Appear, with the immigration enforcement priorities of the Department of Homeland Security.

A Notice to Appear (NTA) is a document given to an alien (non-nationals) that instructs them to appear before an immigration judge on a certain date. The issuance of an NTA commences removal proceedings against the alien. Under the new guidance, USCIS officers will now issue an NTA for a wider range of cases where the individual is removable and there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the United States.

Deferred Action for Childhood Arrivals (DACA) recipients and requestors are exempted from this updated guidance when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA. As explained in the concurrently issued DACA-specific guidance, USCIS will continue to apply the 2011 NTA guidance to these cases. USCIS will also continue to follow the existing DACA information-sharing policy regarding any information provided by a DACA requestor in a DACA request or DACA-related benefit request.

USCIS, along with U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), has legal authority under current immigration laws to issue NTAs. This Policy Memorandum updates the guidelines USCIS officers use to determine when to refer a case to ICE or to issue an NTA. The revised policy generally requires USCIS to issue an NTA in the following categories of cases in which the individual is removable:

  • Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
  • Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense.
  • Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.

The revised policy does not change the USCIS policy for issuing an NTA in the following categories:

  • Cases involving national security concerns;
  • Cases where issuing an NTA is required by statute or regulation;
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status;
  • DACA recipients and requestors when: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

Under separate policy guidance (PDF, 77 KB) issued concurrently, USCIS officers will continue to apply PM 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (PDF, 77 KB) (NTAs) in Cases Involving Inadmissible and Removable Aliens, dated November 7, 2011, to the issuance of NTAs and Referrals to ICE for DACA recipients and requestors.

 


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

AILA’s “Invisible Wall” Report Sheds Light on Trump Administration Policies to Restrict Legal Immigration

WASHINGTON, D.C. – The American Immigration Lawyers Association (AILA) today released a new report, “Deconstructing the Invisible Wall: How Policy Changes by the Trump Administration are Slowing and Restricting Legal Immigration.” Highlighted by real-life case examples, the report describes the broad array of immigration-related policy and procedural changes that have been implemented by the administration that are harming U.S. businesses, American families, and the national economy.

“For decades, our legal immigration system has shaped the America we live in today. As family members reunite, as employers find the right talent, and as colleges and universities open their doors to students from around the globe, America has reaped the benefits of the contributions of immigrants.” said Annaluisa Padilla, AILA President. She continued, “New restrictive policies implemented without any action by Congress are now blocking these longstanding opportunities. Although these policies are promoted as necessary to protect national security and the American workforce, they are shrouded in the fallacy that immigration is bad for our country when study after study shows that immigration makes our country stronger.”

Ben Johnson, AILA Executive Director added, “As a nation, we cannot afford to turn our backs on legal immigration. Immigrants living and working in the United States based on employer sponsorship, family ties, and humanitarian protection build stronger communities, drive economic growth, and enrich our national culture. The ‘invisible wall’ that is quietly and deliberately being built by the administration is harmful to America and needs to be dismantled by the courts, by Congress, and by public opinion. Our shared prosperity and our country’s proud history as a nation of immigrants depend on it.”

The policies and issues detailed in the report include:

  • The travel bans and extreme vetting directives that halt or delay immigration without any justification beyond vague references to national security;
  • Policies restricting the admission of temporary skilled workers and entrepreneurs to the United States, impacting American businesses and slowing economic growth;
  • The termination of programs for compelling populations, sowing fear and confusion among thousands of individuals who have resided in the U.S. for decades;
  • The imposition of hurdles to naturalization for foreign-born soldiers, which are unnecessary and ignore the needs of the U.S. military; and
  • The growing backlog of immigration benefits applications, increasing processing times, and increasing fees, along with a decreasing focus on stakeholder input and customer service.

Impacts of Government Shutdown on mobility and visa matters

Washington, DC.  Due to a failure to pass a relevant funding bill (government budget), a shutdown of the United States federal government began at 12 am EST on Saturday, January 20, 2018. Federal government’s operations will vary by agency, and “non-essential operations” of impacted agencies will be closed because of the shutdown. Following are impacts of government shutdown on immigration matters:

We will be closely monitoring the legislative developments and updates from U.S. Senate and House of Representatives about impending shutdown.


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com 

 

The Hill: Tech trade groups push Trump to allow H1B spouses work

The Hill: A coalition of major Washington, D.C., trade associations representing technology and other industries is urging the Department of Homeland Security (DHS) to preserve visas that allow spouses of H1B high-skilled workers to also be employed in the U.S. “Individuals looking to obtain H-4 authorization already legally reside in the United States and are on the path to permanent residency. They are also eager to work in order to support their families, contribute to their communities by paying taxes, and utilize their skills to help the U.S. economy grow,” the groups wrote in a letter to Lee Francis Cissna, director of U.S. Citizenship and Immigration Services (USCIS), a component of DHS.

“It is a function of the failure to reform our nation’s immigration system that this group of H-4 spouses — the majority of whom are women — continue to face uncertainty and may be prevented from working while they wait for bureaucratic backlogs to be cleared,” they continued.

Signatories on the letter spearheaded by the Information Technology Industry Council include Silicon Valley-backed immigration advocacy group Fwd.us and other technology trade associations like BSA and TechNet as well the National Association of Manufacturers and the Chamber of Commerce. (more here)

Skilled workers and employers should not be alarmed by McClatchy DC’s report that DHS weighs major change to H-1B foreign tech worker visa program

By citing unnamed sources McClatchy DC reports that the Department of Homeland Security (DHS) weighs major change to H-1B foreign tech worker visa program. DHS is considering new regulations that would prevent H-1B visa extensions, according to two U.S. sources briefed on the proposal. The measure potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. The proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.

Skilled workers and employers should NOT be alarmed by the news report because an executive order or rule adopted by the government cannot re-write a Congressional Act. Executive order can regulate activities within purview of Executive Branch under the constitution, and it could adopt rules based on legal authority from particular Congressional Act(s). The H-1B extensions beyond six years are based on specific Congressional Act, Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000_(“AC 21”), therefore, it is very unlikely that the government will seek to pursue such an executive action or a rule making as reported by McClatchy DC. Even if the government adopts such a regulation, it still has to pass the muster under the constitution and applicable statutes. It is also likely that such a regulation or executive action may be challenged at the court of law.

It should be also noted that the Congress has the exclusive constitutional authority to regulate U.S. immigration, the executive branch enforces the immigration laws passed by Congress.

Under the Immigration and Nationality Act (INA), there are several provisions which state “Attorney General (now Secretary of DHS pursuant to Homeland Security Act of 2002) may”. This basically means DHS makes a decision on case by case basis and it does not mean that the DHS has the discretion and it could deny the extensions without lawful grounds. For the purpose of extensions beyond 7th years, the Section 104(c) of AC 21 is applicable which states:

“(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3)
section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those
paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s
application for adjustment of status has been processed and a decision made thereon.”

The above statutory provisions means that  such an immigrant “may apply” for an extension, therefore, Attorney General too “may grant” such an extension until the alien’s application for adjustment of status has been processed and a decision made thereon. In other words if the alien chooses to apply for an extension then the Attorney General may grant an extension if the following elements are met:

  1. the alien is the beneficiary of a petition filed under Section 204(a) of INA (EB1, EB2 or EB3);
  2. the alien is eligible to be granted that status (i.e. employment-based EB1, EB2 or Eb3 immigrant status) but for per country limitation. (eligibility to apply for immigration visa is based on priority date as published in the Visa Bulletin)

This means the alien has to affirmatively prove above facts with documentary evidence, therefore, the extension is not automatic and the Attorney General will still examine those evidence to ascertain that the alien meets the criteria for extension under AC 21. Therefore, H-1B petitioners often submit copy of I-140 approval notice, copy of passport, and the latest visa bulletin for the H-B extensions based on Section 104(c) of AC21.

While the executive branch may be able to cause some temporary disruption, it cannot adopt executive actions or rules that contravene the statutes promulgated by the legislative branch. Therefore, while employers using the H-1B visa should continue to watch for potential changes to immigration laws, they should not be concerned that their current H-1B employees will be denied extensions beyond 6 years.

 


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com instead of falling for unsubstantiated news reports. 

Trump administration may “potentially” end H-4 EAD

On February 25, 2015, DHS had published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

RegInfo.gov is a United States Government website produced by the Office of Management and Budget (OMB) and the General Services Administration (GSA).