Trump Administration Reverses Guidance Barring Foreign Students from Taking Online-Only Classes in Fall
On Tuesday, after significant opposition, the Trump administration announced that it has rescinded the July 6, 2020 ICE Guidance (“July Guidance”) issued last week prohibiting international students from remaining in the U.S. if they are attending school that is entirely remote for the fall 2020 semester. The announcement came during a district court hearing in a lawsuit filed by Harvard University (“Harvard”) and the Massachusetts Institute of Technology (“MIT”) that sought to temporarily restrain and permanently enjoin the July Guidance. Over 200 universities signed briefs in support of Harvard and MIT’s legal challenge. In addition to the Harvard-MIT lawsuit, California public colleges also filed a legal challenge which was followed by another legal challenge from a coalition of seventeen states and the District of Columbia.
The recission of the most recent guidance will allow international students to remain in the U.S. and continue studying remotely without impacting their visa status during the COVID-19 pandemic under previous guidance issued in March. Normally, international students are not authorized to take more than one course or three credit hours online. However, the March guidance authorized the counting of online classes towards a full course of study in excess of the limits stated in regulation due to the “extraordinary nature of the COVID-19 emergency.”
With the resumption of the status quo, schools may proceed to utilize 100% remote classes without jeopardizing the health of their students and the immigration status of their foreign students. This news should allay the fears of foreign students and employers regarding the eligibility for CPT issuance for the fall, and again allow students who are completing degree programs to maintain status and still qualify for a post-completion EAD allowance. Although this initial policy change never impacted existing EAD holders, the reversal should be welcome news in any event as it restores equilibrium to the student visa system. With U.S. consulates officially closed, returning students who are outside of the U.S. should apply for visas as soon as they are allowed and pay attention to options for them to expedite visa issuance. Our firm will continue to provide updates on this issue should anything change.
Responding to Restrictions on the U.S. Immigration System
COVID-19 has brought unprecedented changes and challenges to how we all live and work. Since the COVID-19 pandemic began in March, the Trump administration has issued over 48 policy changes to the immigration system. While some of these changes benefit our collective public health, the vast majority of these restrictions are unrelated to the COVID emergency, and are part of the administration’s playbook on how to further reduce immigration. Of the actions taken, among the most concerning were the April 22 Presidential Proclamation suspending certain categories of permanent legal immigration into the U.S., the June 22 Presidential Proclamation barring the entry of H-1B, H-2B, L, and certain J visa applicants who were abroad on the date of enactment without an unexpired visa for the category in which they were seeking entry and the July 6 ICE guidance prohibiting all F-1 and M-1 students attending schools that operate entirely online from remaining in the U.S. (which was rescinded yesterday). Family members, who are separated from their loved ones, businesses, who may be separated from their employees abroad, and students, who are uncertain regarding whether they will be able to remain in the U.S. and attend school in the fall, are keenly aware of the devastating impact of these agenda-driven restrictions. Many of our clients have asked “what can we do?” We explore some options below:
- Participating in Litigation Efforts:
Leading immigration advocacy organizations such as the American Immigration Lawyers Association (“AILA”), a national association of more than 15,000 attorneys and law professors who practice and teach immigration law, which includes all the attorneys in our office, and the American Immigration Council (“AIC”), which works towards a more fair and just immigration system, are spearheading efforts to litigate against recent immigration restrictions. Specifically, these organizations are seeking employers who are directly impacted by the immigrant ban or the nonimmigrant entry ban (H-1B, H-2B, L, and certain J visas) who are willing to serve as representative plaintiffs in lawsuits challenging these bans. Due to the nature of litigation, plaintiffs’ names would be available to the public and plaintiffs would need to be willing to share their story, e.g. explain the hardship caused by the proclamation and be willing to back up any assertions. Please contact a member of our firm if you/your organization would like to learn more about the possibility of participating as a representative plaintiff.
- Contacting Congressional Representatives:
Contact the elected officials in Congress (House, Senate) that represent your district or state to express your thoughts and concerns about the current immigration restrictions and encourage your representatives to advocate for sensible immigration solutions with the administration.
- Donating to Organizations that Advocate for Immigrants:
Certain immigration advocacy organizations such as AILA and AIC are non-profit and non-partisan. These organizations would be more than happy to receive any financial support towards their education and advocacy efforts that you can provide, and you have the ability to designate funds provided to specific litigation efforts.
- Participation in an Amicus Brief:
Although legal action has not yet been filed against the June 22nd Proclamation, it is expected in the near future. Those employers and industry groups that may not qualify as possible plaintiffs, or who choose not to volunteer can still consider signing on to an Amicus Brief. While we are not organizing a specific brief filing, we anticipate that similar to the recent Harvard/MIT court action that was joined by 200 schools, this option will present itself.
We want to support our clients in pushing back against these ill-timed, restrictive, unhelpful, and unconstitutional actions. If you have any questions regarding what you can do, or if you would like to explore other alternative options please contact a member of our firm.
U.S. Supreme Court Blocks DACA Rescission
On June 18, in a landmark 5-4 decision, the U.S. Supreme Court held that the Department of Homeland Security’s (“DHS”) decision to rescind Deferred Action for Childhood Arrivals (DACA) in 2017 was unlawful due to violating the Administrative Procedure Act (“APA”).
Created in 2012, the DACA program provides immigration relief in the form of temporary protection from removal and employment authorization for certain undocumented immigrants brought into the U.S. as children. Since its implementation, over 700,000 individuals have participated in the DACA program.
With the Supreme Court’s decision, DACA recipients may continue to work lawfully in the U.S. and seek work authorization renewals, as necessary. Employers are reminded to treat DACA employees and job applicants the same as other employees and applicants. In the context of Form I-9, employers must refrain from requiring a specific document to verify employment authorization.
While the Supreme Court’s decision provides temporary relief for DACA recipients, the possibility remains open that the current administration may seek to end the program in the future as long as the procedures taken to end the program are lawful.
USCIS Extends 60-Day Extension of Deadlines for RFEs and Agency Requests through September 11, 2020
In May, due to the ongoing COVID-19 pandemic, USCIS announced that it would continue to provide flexibility for agency requests by accepting responses received within sixty (60) calendar days after the due date set forth in certain requests or notices before taking action, if the request or notice was issued by USCIS between March 1 and July 1, 2020. Recently, USCIS has confirmed that it will continue the 60-day extension of deadlines for agency requests issued between March 1, 2020 and September 11, 2020. Applicable requests and notices include:
- Request for Evidence (“RFE”);
- Continuation to Request Evidence (N-14);
- Notice of Intent to Deny (“NOID”);
- Notice of Intent to Revoke (“NOIR”);
- Notice of Intent to Rescind; and
- Notice of Intent to Terminate.
The extension serves as one of several measures to “minimize the immigration consequences for those seeking immigration benefits during this time” adopted by USCIS. Though our firm will work to respond to any USCIS request or notice as expeditiously as possible, and before the stated expiration, the agency’s added flexibility is appreciated.
CBP Delays Global Entry Reopening Until at Least August 10, 2020
On July 1, due to the rise in COVID-19 cases, Customs Border and Protection (“CBP”) announced that it would postpone the reopening of the Global Entry program until at least August 10, 2020. The program had been closed since March 19, and was previously scheduled to reopen on July 6.
Global Entry is a CBP program that provides expedited clearance for international travelers through automatic kiosks at select airports. Participants undergo a rigorous background check and an in-person interview before enrollment. U.S. citizens, lawful permanent residents (except New York residents) and citizens of certain countries are eligible for membership. Canadian citizens and residents are eligible for Global Entry through NEXUS.
Applicants with an interviewed scheduled for July through early August must reschedule their appointments on or after August 10 through CBP’s online scheduling tool. Applicants continue to have 485 days from their conditional approval to complete the enrollment application due to the continued closure.
We will continue to provide updates regarding traveler programs as CBP announces them.
U.S. Residents Subject to Europe’s Travel Ban
On June 30, the Council of the European Union adopted non-legally binding recommendations for the gradual lifting of non-essential travel into the EU. Member states and non-EU countries of Iceland, Norway, Switzerland, and Liechtenstein were advised to open their borders to 15 “safe countries,” with China included “subject to confirmation of reciprocity,” based on a third-country’s epidemiological situation beginning on July 1. Since the U.S. did not satisfy certain health criteria, due to rising COVID-19 cases, U.S. residents will be excluded from visiting certain European nations unless they qualify for an exemption. European citizens or residents and their family members and travelers with an essential function or need are exempted from the entry restriction.
Please contact a member of our team if you have questions about European travel restrictions or if you believe you may be impacted.
Reminder Regarding Upcoming I-9 Flexibility Expiration
The Department of Homeland Security’s (“DHS”) flexibility regarding physical inspection of an employee’s identity and employment authorization documents, for Form I-9 compliance, is set to expire on July 19 for 100% remote employers, unless further extended.
In March, DHS had announced that employers would be allowed to remotely inspect Section 2 of Form I-9 documents due to COVID-19. Once normal operations resumed, employees who used remote verification are required to physically present their identity and employment eligibility documentation to their employers within three business days. In May, this policy was extended; and in June, the policy was extended for employers operating 100% remotely due to COVID-19. If an employer had employees physically present at the worksite, I-9 flexibility would not be available.
Employers are encouraged to monitor ICE’s New Releases page for any announcements regarding the continuation of I-9 flexibility for 100% remote employers. If the current I-9 flexibility is not extended, employers are reminded that they must physically inspect original documents within three business days from the date of hire.
Administration Affirmatively Seeking to Implement Visa Max for Students and Other Nonimmigrants
The Office of Management and Budget’s (“OMB”) website indicates that DHS submitted a draft of a proposed rule to limit the maximum period of authorized stay for nonimmigrant students (F-1s), exchange visitors (J-1s), and representatives of foreign media (I-1s) to its office in June 2020. The proposed rule will undergo normal APA rulemaking procedure before the final rule is published.
Currently, students and certain other nonimmigrants are authorized to remain in the U.S. for the duration of their status. In other words, they are permitted to remain in the U.S. as long as they properly maintain their status. DHS first referenced the planned proposal to replace the duration of status admission period with a maximum period with extension options in its Fall 2018 regulatory agenda. The planned proposal was retained in the agency’s Spring 2019 regulatory agenda. Though specific details of the proposed rule are unknown, once the OMB completes its review of the proposed rule, it will be published in the Federal Register for notice and comment by the public. At that point, we will be able to fully assess the impact of the draft proposal. Under the current duration of status rules, universities and J-1 program sponsors can transfer and extend the status of individuals who are in the U.S. without a separate USCIS filing, and with these anticipated changes to duration of status, we anticipate that F-1 and J-1 status holders may be required to timely file extension of stay requests or risk falling out of status.
We are concerned that such a change in rules will eliminate the flexibility that F-1s and J-1s truly require, and we will continue to track the developments of this rule and provide updates as they become available.
In Case You Missed It
We have continually addressed many of the most important recent issues through our comprehensive webinars hosted by Managing Partner, David Brown. For a look back and to access this important information related to compliance related to Work from Home, Reductions in Force, or navigating the current immigration bureaucracy visit our recorded sessions HERE (under Previous Webinars) from earlier this year at your convenience.
The Team at Brown Immigration Law
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **