Executive Orders and Related (2017)

New Rules Affecting F-1 and M-1 Students

July 29, 2020 update:

On July 24, 2020, ICE issued “clarifying guidance” regarding the gaps noted in our July 19 below. Specifically, universities are now prohibited from issuing I-20s to new or “initial” students, and so students starting new programs will not be eligible to apply for visas. As the proposed rule (discussed below) was withdrawn, students who were already enrolled but left the U.S. due to COVID may be eligible to re-enter and resume studies, even if they are provided in a fully online format. The Department of State similarly revised its guidance, providing for visa issuance for continuing, but not for new, international students.

July 19, 2020 update:

Note that although the proposed rule discussed below was withdrawn, there are still several gaps in the guidance which essentially reverted to FAQ issued in March 2020, which allowed existing students to maintain status despite classes being held primarily online due to COVID. Notably, the March ICE guidance states that students who are not already in the United States should “remain in their home country” which raises questions about new students arriving for Fall semester. In addition, current Department of State guidance directs Consular Officers to refuse visa applications for students who intend to attend their programs entirely online. F-1 and M-1 students (including those participating in CPT or OPT) will need to remain in close contact with their DSOs for guidance. The current H, L, J visa ban does NOT prevent F-1 or M-1 student visa issuance, and the current COVID travel ban for Schengen, U.K., and Ireland does not apply to F-1 students with valid visas and I-20s.

July 14, 2020 update:

The administration reportedly agreed to withdraw the proposed rule in entirety during a TRO hearing on the Harvard/MIT litigation.

Original post:

On July 6, 2020, the administration announced that F-1 and M-1 students would not be able to maintain status if their universities were only operating online for the fall semester. Many universities are currently in the process of determining whether and how they will operate going forward due to COVID concerns, and had been relying on the temporary measures put in place during spring and summer that allowed F-1 and M-1 students to maintain status despite coursework and classes being moved to remote scenarios for safety during the pandemic. (Ordinarily, only 1 class or 3 credit hours may be taken online.)

On July 7, 2020, Harvard and MIT sued to enjoin this new rule. There has already been a hearing on a temporary restraining order (TRO) in that case, with a decision expected around July 15, 2020. Experts are divided as of this writing on whether a TRO could cover only Harvard and MIT, or whether it could be national in scope. Other universities and states, including California, are also filing lawsuits. More guidance is potentially expected when ICE issues the interim final rule (regulation) in the Federal Register, after which there may be a brief comment period.

Many, many questions are unanswered such as what the minimum in-person requirements would be for a so-called “hybrid” program (which would be acceptable under the new rule), how post-docs will be treated if they have completed coursework, how students may maintain active SEVIS status if they elect to take coursework remotely from their home countries (to preserve, say, CPT eligibility), and how the international student offices will deal with the requirements to issue new I-20s for the millions of international students in the U.S.

We are closely monitoring developments on this issue for our clients as there will also necessarily be an impact on CPT and OPT work authorizations if students are not allowed to remain in the U.S. to continue or complete their programs.

Resources:

https://www.nytimes.com/reuters/2020/07/06/us/06reuters-usa-immigration-visas-students.html

https://www.nafsa.org/regulatory-information/sevp-covid-19-guidance-fall-2020

https://www.chronicle.com/article/Here-s-a-List-of-Colleges-/248626?cid=wcontentgrid_hp_1b

© Jewell Stewart & Pratt PC 2020

Impending Expansion of U.S. Travel Restrictions to Include Nonimmigrant Visas

The American Immigration Lawyers Association (AILA) received reports on June 19, 2020 that a general agreement had been reached on Tuesday, June 16, 2020 on a proposed update to Presidential Proclamation 10014 (the existing travel restrictions, in effect since 4/23/2020).  We understand that the update may be announced and effective imminently.  AILA believes that that any extension or expansion of the Proclamation must happen before it expires at 11:59 pm on Monday June 22, 2020. Reports seem to confirm that the nonimmigrant visa categories H-1B, H-2B, L-1, and J-1 will be impacted by the updated proclamation, but that there will be exceptions.  We continue to monitor this and will post further updates as developments occur.

© Jewell Stewart & Pratt PC 2020

Presidential Proclamation on Health Insurance for New Immigrants

Update: This Presidential Proclamation is the subject of litigation. As of Saturday, November 2, 2019, there is a nationwide temporary restraining order against the enforcement of the Proclamation.

Original post:

On Friday, October 4, 2019, President Trump issued a Presidential Proclamation entitled Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, which imposes a health care insurance requirement on new immigrants. Specifically, it requires applicants for immigrant visas to show the ability to purchase unsubsidized commercial health insurance within 30 days of U.S. entry.

USCIS announces final changes to cap-subject H-1B visa petition processing

On January 30, 2019, U.S. Citizenship and Immigration Services (“USCIS”) announced a final rule effective April 1, 2019 that changes the way cap-subject H-1B petitions will be processed in two ways: first, petitioners seeking to file petitions will have to register electronically with USCIS during a designated registration period; and second, the order in which cap-subject petitions are selected in years when demand exceeds supply (i.e., when a lottery is required) has been reversed.  We discussed these changes in depth when they were proposed, in our December 3, 2018 blog post.