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

The Texas Attorney General, joined by six other states, filed suit against the federal government yesterday to terminate the Deferred Action for Childhood Arrivals (DACA) program on the basis that DACA derives from an executive overreach by President Obama in 2012. The suit was filed in the Fifth Circuit in Brownsville, Texas, where a November 2015 decision overruled President Obama’s plans to protect more than 4 million individuals from deportation.

The lawsuit further complicates the fate of DACA recipients, also known as Dreamers, as other district court rulings remain active. Most recently, a  Washington, DC district judge ordered that DACA renewal applications should continue, and that new applicants may be eligible to apply if the federal government fails to justify within 90 days why DACA should cease altogether.

Continue Reading Texas and Six States Sue to Abolish DACA

On April 24, 2018, Judge John D. Bates of the Federal District Court for the District of Columbia ruled against the Trump Administration’s “unlawful” rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. Arguing that the decision to end DACA was “arbitrary and capricious because the department failed adequately to explain its conclusion that the program was unlawful,” Judge Bates stayed his decision for 90 days to offer the Department of Homeland Security (“DHS”) the opportunity to provide sound justification for terminating the program.

Should DHS fail to adequately address its reasoning for canceling the DACA program within the timeframe, the government will be ordered to once again accept and process new and renewal DACA applications for eligible applicants.

Read the decision.

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.

On Thursday, April 6, 2018, federal and state officials arrested approximately 97 workers at a meat-processing facility in Tennessee.  The charges faced by the individuals primarily relate to immigration-related offenses.

Media reports noted that the federal affidavit submitted in connection with the raid stated that the facility was targeted as a result of an Internal Revenue Service (IRS) criminal investigation related to whether the company had been filing false tax returns and avoiding payment of payroll tax.  The company’s bank reported repeated large cash withdrawals to the IRS, which prompted the investigation.  The IRS contends the funds were used to pay undocumented workers.

Continue Reading ICE Collaboration with IRS a Signal of Intra-Agency Cooperation Across Contexts


On Tuesday, April 10, 2018, President Donald Trump announced that restrictions on travel would be lifted for citizens of Chad, one of eight countries included in the third version of the administration’s controversial travel ban.   In doing so, the president cited improvement in Chad’s identity-management and information sharing practices. Originally announced on September 24, 2017 in the “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” Travel Ban 3.0 imposed restrictions on travel for nationals of Chad and seven other countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.   Mayer Brown’s Legal Advisory in September 2017 addresses the precise restrictions on each of the countries. Continue Reading President Lifts Travel Ban 3.0 for Chad, But Seven Other Countries Remain Barred

In light of recent news regarding data breaches affecting Facebook users, data-mining apps are not the only entities monitoring social media use these days.

Last fall, the Department of Homeland Security expanded its digital monitoring policy in the Federal Register to include immigrant “social media handles, aliases, associated identifiable information, and search results”.  While DHS describes the announcement as a policy clarification rather than a policy change, the news escalates the debate concerning government use of social media and the tension between privacy rights, free speech, and public safety. Concurrently, DHS issued broader access to public-source data in concert with the intelligence community.  Whereas these 2017 adoptions indicate recent change, DHS has instituted new practices in the digital domain over the last two decades. For instance, the Department began to evaluate social media more closely in the aftermath of the 2015 San Bernardino mass shooting by two attackers who had exchanged private online messages, and added optional requests for social media use under the Visa Waiver Program in late 2016.

Continue Reading 5 Ways Your Social Media Use Might Impact Your Immigration Journey

The Washington Post reported that US Citizenship & Immigration Services, the federal agency that adjudicates petitions and applications for immigration and naturalization benefits, is creating an internal division to police caseworkers who “may be too forgiving toward applicants for permanent legal residence or citizenship . . .”  See Washington Post, US Immigration agency to more closely monitor caseworkers, documents show, March 16, 2018.   Agency officials confirmed plans for an internal oversight office, but denied that the office would be focused on monitoring caseworkers perceived as too lenient.  See, e.g., The Hill, Federal immigration agency denies that it’s creating a new division to police caseworkers, March 17, 2018.   An agency spokesperson indicated that a final decision had not been made and all mission or structural considerations are “pre-decisional until they are formally announced.” Continue Reading Getting to No Through a Crackdown on “Lenient” Case Officers at USCIS

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


The first senior leadership conference of the nation’s immigration services agency, US Citizenship & Immigration  Services,  resulted in the agency stripping the phrase “nation of immigrants” from its mission statement.  USCIS Director L. Francis Cissna stated that the agency’s mission is more “simple and straightforward,” and emphasized that immigrants are not “customers” of USCIS, in the news release announcing the change.  As of February 22, 2018, the new mission statement reads:

“U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.” Continue Reading USCIS Removes “Nation of Immigrants” From Its Mission Statement