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Visa Lawyer Blog

Articles Posted in F-1 Visa

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We continue to have good news for international students. As you already know, on July 8th Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit to stop the government from enforcing new guidelines on international students that would prohibit them from taking online classes during the Fall semester, despite increasing coronavirus cases nationwide. The new guidelines announced by the federal Student and Exchange Visitor Program (SEVP) would refuse visas to students in schools that plan to teach classes fully online this fall and would bar these students from entering the country. Students already in the United States enrolled in schools teaching online classes would need to leave the country or transfer to a school with in-person instruction to keep their visas.

Since the Harvard-MIT lawsuit was filed, Northeastern university has joined the fight. In addition, many other universities across the United States have rallied together in support of their students, including the University of California school system, Princeton, Cornell, John Hopkins University, and the University of Pennsylvania. These institutions have filed amicus briefs supporting the Harvard-MIT lawsuit and/or filed lawsuits of their own in district court.

On July 9th Attorney General Xavier Becerra also filed a lawsuit on behalf of the State of California against the Trump administration to stop the government’s new policies from going into effect.

Like the state of California, many more states are expected to file their own lawsuits in the coming week.

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We have news that may be some relief to international students across the United States.

Today, Wednesday, July 8, 2020, Harvard and the Massachusetts Institute of Technology (MIT) filed a lawsuit in District Court in Boston against the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), challenging new guidelines that prohibit international students from taking online classes during the upcoming fall semester.

The lawsuit seeks a temporary restraining order, preliminary, and permanent injunctive relief to bar the Department of Homeland Security and Immigration and Customs Enforcement, from enforcing recent federal guidelines just announced on Monday, that prohibit international students from attending U.S. colleges and universities offering only online instruction during the upcoming Fall 2020 semester.

As our loyal followers know, early this week, Immigration and Customs Enforcement issued a news release introducing a new set of guidelines for international students who will take courses in the U.S. during the upcoming fall semester.

Among the new guidelines, we learned that F-1 and M-1 students will be prohibited from taking courses entirely online during the fall semester. The announcement stated that the Department of State would not issue visas to students enrolled in schools and/or programs operating entirely online, and Customs and Border Protection would not allow such students to enter the United States.

International students in the United States enrolled in schools and/or programs operating entirely online were only given two options (1) depart the United States or (2) take other measures such as transferring to a school with in-person instruction to remain in lawful status.

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Today, Monday, July 6, 2020, the United States Immigration and Customs Enforcement (ICE) issued a news release introducing new modifications taken by the Student and Exchange Visitor Program (SEVP) that will apply to all international students in F-1 and M-1 status taking courses during this upcoming Fall 2020 semester. The U.S. Department of Homeland Security will be publishing new procedures and responsibilities for F-1 and M-1 students during the upcoming Fall 2020 semester in the Federal Register including changes to current policies for F-1 international students.

Monday’s modifications introduce surprising requirements for F-1 and M-1 students taking online classes due to the Coronavirus (COVID-19) pandemic during the fall 2020 semester.

What are these new requirements?

There are three sets of new requirements.

F-1 and M-1 Students Attending Schools with Full Online Instruction During the Upcoming Fall 2020 Semester Must Transfer to In-Person Instruction or Depart the United States

Nonimmigrant F-1 and M-1 students who are attending schools operating entirely online may not take a full online course load and remain in the United States.

The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall 2020 semester nor will U.S. Customs and Border Protection permit these students to enter the United States.

Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status.

If the student fails to transfer to a school with in-person instruction for the fall 2020 semester, the student may face immigration consequences including, but not limited to, the initiation of removal proceedings.

F-1 Students Attending Schools With In-Person Instruction Bound to Existing Regulations – Can Take 3 Credits Online

F-1 students who will attend schools operating under “normal” in-person instruction during the Fall 2020 semester (as opposed to online classes) will be bound by existing federal regulations. Eligible F students are permitted to take a maximum of one class or three credit hours online.

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The Trump administration is setting their sights on a new enemy: students and researchers of the People’s Republic of China. A new presidential proclamation, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” issued on May 29, 2020, will temporarily suspend the entry into the United States of Chinese nationals seeking to enter the United States on an F or J visa to study or conduct research in the United States, except for student seeking to pursue an undergraduate course of study. The proclamation goes into effect at 12:00 pm (ET) today June 1, 2020 and will remain in effect until terminated by the President.  

Specifically, the proclamation limits the People’s Liberation Army’s (PLA) ability to misuse nonimmigrant F student and J researcher visa programs.

Who will be suspended?

F or J Chinese nationals entering to study or conduct research in the United States and who either

  • Currently “receive funding from or who currently is employed by, studies at, or conducts research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’,” or
  • In the past “has been employed by, studied at, or conducted research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy'”

The proclamation defines “military-civil fusion strategy” as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

Section 1 exempts F and J undergraduate students from the proclamation. In addition, graduate students and researchers are also exempt from the proclamation if they do not have any of the specific current or past funding, employment, study, or research nexuses with “an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’.”

Why the Proclamation?

The proclamation was issued to protect the country’s national and economic security from attempts by the People’s Republic of China “to illicitly acquire American technology and intellectual property from our academic institution and research facilities for Chinese military ends.”

According to the Department of State, “[the country’s] concern is with the malign actions of the Chinese Communist Party and specific individuals, not with the Chinese people.” These actions were made as “a direct consequence of PRC government strategies and policies that exploit the access of some of China’s brightest graduate students and researchers, in targeted fields, to divert and steal sensitive technologies and intellectual property from U.S. institutions, taking undue advantage of our [country’s] open and collaborative academic and research environment.”

The U.S. government is particularly concerned that U.S. graduate students and researches will be targeted, co-opted, and exploited by the government of the People’s Republic of China for military gain.

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In the midst of the ongoing Coronavirus (COVID 19) pandemic, USCIS reminds applicants and petitioners impacted by the pandemic that they can seek certain types of discretionary relief on a case-by-case basis.

Relief for Individuals Seeking Extensions/Change of Status

Special relief is available to individuals who were unable to file an extension or change of status petition before the end of their authorized stay expired, if a special situation prevented the individual’s departure and/or filing.

According to USCIS, “when applying for an extension or change of status due to a special situation that prevented your planned and timely departure,” the agency “may take into consideration how the special situation prevented your departure.”

In addition, if an applicant was not able to apply for an extension or change of status before their authorized period of admission expired, USCIS in their discretion may excuse the delay if it was due to extraordinary circumstances beyond the applicant’s control. An applicant in such a situation should be prepared to provide documentary evidence of those extraordinary circumstances. Depending on the applicant’s situation, the types of evidence that can be provided will vary.

Relief for F-1 Students Based on Severe Economic Hardship Caused by Unforeseen Circumstances

F-1 students who are experiencing severe economic hardship because of unforeseen circumstances beyond their control (such as those impacted by the COVID 19 pandemic) may request employment authorization to work off-campus (if they meet certain regulatory requirements) by filing Form I-765 Application for Employment Authorization along with Form I-20, and supporting materials. See 8 CFR 214.2(f)(9).

The student’s Form I-20 must include the employment page completed by your Designated School Official, certifying your eligibility for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond your control.

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The Trump administration’s controversial rule making certain foreign nationals inadmissible to receive permanent residence on public charge grounds, will become effective beginning October 15, 2019.

First, and foremost let’s recap what this rule is about and who it will apply to:

Under immigration law, an individual who, in the opinion of DHS is likely at any time to become a public charge is (1) ineligible for a visa (2) ineligible for admission to the United States and (3) ineligible for adjustment of status (permanent residence).

This means that the rule applies to foreign nationals applying for a U.S. visa, foreign nationals seeking admission through a port of entry, and individuals applying for adjustment of status.

When an individual applies for any immigration benefit with the government, (whether a U.S. visa or green card application), the official adjudicating the petition must determine whether that individual is or will likely become a public charge. This determination is referred to as a “public charge determination.”

What makes someone a public charge in the eyes of immigration?

A person is a “public charge” if they are primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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It is that time of the week again! In this post, we bring you the latest immigration news from USCIS.

Texas Service Center Will Begin Processing Certain Cap-Exempt H-1B Petitions

On May 20, 2019, USCIS announced that the Texas Service Center will begin processing certain cap-exempt H-1B petitions filed on Form I-129 Petition for Nonimmigrant Worker.

What types of petitions may be processed by the TSC?

Cap-exempt petitions requesting:

  • A change in previously approved employment;
  • A change of employer;
  • Concurrent employment;
  • Amendments;
  • A continuation of previously approved employment without change with the same employer;
  • A change of status to H-1B; or Notification to a U.S. Consulate or inspection facility (port of entry or pre-flight inspection).

Applicants must continue to refer to the direct filing address chart to determine where the I-129 Form should be filed. The workload for cap-exempt petitions will be distributed between the Texas Service Center, California Service Center, Vermont Service Center, and Nebraska Service Center to increase efficiency and prevent processing delays.

If your case is transferred, you will receive a transfer notice in the mail.

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If you are an F-1 student with an H-1B petition that remains pending with the United States Citizenship and Immigration Services (USCIS), and your “cap-gap” employment authorization is only valid through September 30, 2018, you may risk accruing unlawful presence if you continue to work on or after October 1, 2018.

What is a “cap-gap”

You are in “cap-gap” status if you are an F-1 student who is the beneficiary of a timely filed H-1B cap subject petition with USCIS, and you are seeking a change of status from F-1 student to H-1B on October 1st, October 1st being the requested start date of H-1B employment.

A “cap-gap” is used to fill the gap between the end of a student’s F-1 status and the beginning of potential H-1B status. To avoid any gap in status, USCIS extends the validity period of both the student’s F-1 status and current employment authorization, but only until September 30.

The “cap-gap” period begins when an F-1 student’s status and employment authorization expires.

Temporary Suspension of Premium Processing

USCIS has temporarily suspended premium processing services for cap-subject petitions to prioritize the adjudication of cap-gap petitions filed by students, however USCIS does not guarantee that it will adjudicate these petitions in a timely manner by October 1st. Students with a cap-gap H-1B petition that remains pending on or after October 1st are no longer authorized to continue working under the cap-gap regulations.

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A new policy memorandum will change the way the accrual of unlawful presence is calculated for F, J, and M non-immigrant visa holders, and their dependents, beginning August 9, 2018, and onwards. The accrual of unlawful presence may lead to a bar preventing the foreign national from re-entering the United States.

In 1997 Congress began implementing a policy that governed the admissibility of individuals in F, J, and M non-immigrant visa status. Pursuant to that policy, nonimmigrants who overstayed their visa for more than 180 days could be subject to a 3-year bar, while individuals who overstayed for more than one year could be subject to the 10-year bar, for violating the terms of their visa status.

However, this class of individuals only began to accrue unlawful presence, where an immigration judge ordered the applicant excluded, deported, or removed from the United States, or where USCIS formally found a nonimmigrant status violation, while adjudicating a request for another immigration benefit, such as adjustment of status. This policy applied to all non-immigrants who were admitted or present in the United States in duration of status (D/S).

New Policy

On August 9, 2018, USCIS released a policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” superseding the previous 1997 policy, in order to reduce the number of overstays, and implement a new policy regarding how to calculate unlawful presence for F, J, and M non-immigrants and their dependents.

Pursuant to the new policy, from August 9th onwards, “F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence,” as follows:

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