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In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s.  These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).

Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program or otherwise violate the terms of their status.  Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States.   The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”

The change comes on the heels of an unannounced agency amendment to website guidelines impacting F-1 foreign students in the Science, Technology, Engineering, and Mathematics arena (STEM), who capitalizing on a three-year post-completion work authorization period known as optional practical training (OPT).   This change prohibits STEM students from performing services at third-party (e.g., client) worksites as part of their STEM OPT curriculum. Continue Reading USCIS Changes Policies on Unlawful Presence Calculation and Worksite Location Requirements for Foreign Students

On Wednesday, April 25, 2018, the US Supreme Court will hear argument in Trump v. Hawaii. Mayer Brown’s Legal Update provides background on this challenge to the third in a series of travel bans issued by President Trump and summarizes the questions before the Court in this final oral argument of its current term.

The demand for H-1B (specialty occupation) visas normally exceeds the annual 85,000 visa cap by two to three times, thus triggering a random lottery for the available visas. Existing United States Citizenship and Immigration Services (USCIS) regulations prohibit the filing of multiple H-1B visa petitions that are subject to the annual cap for the same individual by an employer or a “related entity,” unless the related entity filing is justified by a legitimate business need. The purpose of the regulation is to prevent employers from trying to increase their chances of winning the H-1B cap lottery by submitting multiple petitions for the same individual for substantially the same position.  The penalty for violation of the regulation is denial or revocation of all petitions for the common beneficiary.

Continue Reading USCIS to Crack Down on Multiple H-1B Petitions by “Related Employers”

DACA CONTINUES AT LEAST TEMPORARILY

On Monday, February 26, 2018, the US Supreme Court declined to consider the government’s request to review a preliminary injunction issued last month by a federal court in California.  On January 9, 2018, Judge William Alsup of the US District Court for the Northern District of California issued a preliminary injunction temporarily reinstating the Deferred Action for Childhood Arrivals (DACA) program. Judge Alsup’s temporary order in Regents of the University of California, et al. v. Department of Homeland Security, et al. requires US Citizenship and Immigration Services (USCIS) to accept DACA renewal applications.  On January 13, 2018, USCIS announced its process for accepting renewal applications.  In a petition filed by the Justice Department on January 18, 2018, the government asked the Supreme Court to take the unusual step of bypassing the US Court of Appeals for the Ninth Circuit and reviewing Judge Alsup’s injunction directly.  The Supreme Court declined, thus leaving the lower court’s order in place. Continue Reading Supreme Court Declines to Wade into DACA Mess

As Congress wrestles with another government funding deadline of February 8, 2018, Senators John McCain (R-AZ) and Christopher Coons (D-DE) have announced their intent to introduce a bill to provide permanent relief for undocumented immigrants brought to the United States as children. The bill, which is expected to mirror a measure introduced last month in the House by Congressmen Will Hurd (R-TX) and Pete Aguilar (D-CA), would provide permanent residence and a path to ultimate citizenship for beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program terminated last September by President Trump.  DACA is scheduled to end on March 5, 2018.

The House bill, Uniting and Securing America Act (USA Act), has 54 co-sponsors evenly split between party lines. The bipartisan bill would create a renewable eight-year conditional permanent resident status that would allow DACA recipients (a/k/a DREAMers) to be protected from deportation; work legally in the United States; travel outside the country; and apply to be lawful permanent residents (green card holders) if they meet certain requirements.  In view of the expected parity with the House bill, the summary below is based on the USA Act’s provisions. Continue Reading McCain-Coons Bill Unlikely To Be The Answer DREAMers Are Hoping For