Immigration Highlights

May 30, 2018

NP Immigration Newsletter

Author(s): Courtney H. New, Jason Gerrol

The U.S. immigration landscape continues to shift. This alert contains several updates from the last few weeks that we wanted to highlight for you.

Law and policy changes

USCIS provides guidance regarding the accrual of unlawful presence for F, J and M visa holders

When a foreign national lawfully enters the U.S. and stays beyond their authorized period of stay, as governed by their Form I-94 expiration date, they are then considered to be accruing unlawful presence (which can have dire consequences, including up to a 10-year ban from returning to the U.S.). However, as a general rule, foreign students (F visa), exchange visitors (J visa) or vocational students (M visa), and their dependent family members, are admitted for “duration of status,” rather than being given a specific expiration date on their Form I-94. As a result, because they do not have a specific expiration date, they were historically not found to be accruing unlawful presence absent an immigration judge, or USCIS officer, officially making that determination. A new USCIS policy seeks to change that by announcing that F, J and M non-immigrants will begin to accrue unlawful presence upon failure to maintain F, J or M status, by, for example, no longer attending school, or remaining in the U.S. after completing an authorized course of study and grace period. F, J and M visa holders should therefore be sure to work with their sponsoring institutions to ensure they remain in status and do not accrue unlawful presence.

For more information on the new USCIS policy, see this USCIS update. For an explanation of how I-94 expiration dates work, please see our prior client alert.

DHS again seeks to rescind International Entrepreneur Rule

In the latest update regarding the International Entrepreneur Rule (IER), by notice dated May 29, 2018, DHS announced its intentions to rescind the IER. Under the IER, first issued on January 17, 2017 under the Obama administration, a foreign entrepreneur would have been granted parole (i.e., the ability to enter the United States) for the purpose of operating his/her start up entity in the United States. On July 11, 2017, the Trump administration announced its plans to delay the effective date of the IER, and strongly suggested it would rescind the rule altogether, but on December 1, 2017, a federal court ordered USCIS to begin accepting applications under the IER. By all accounts, USCIS has not approved any applications under the IER, and the May 29, 2018 notice likely marks the final demise of the IER.

For background information regarding the IER, please see our previous client alert.

Seven states file suit to end DACA

Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia filed suit in a Texas federal district court on May 1, 2018, reiterating arguments that the Obama administration overstepped its executive authority in creating the Deferred Action for Childhood Arrivals (DACA) program and calling for the government to stop issuing and renewing DACA permits. Ironically, the defendant in the suit is the Trump administration, which has already called for the rescission of the DACA program. The suit counters several federal court decisions, which found the Trump administration’s plans to end the DACA program unlawful and which have kept DACA alive for the time being. The Texas federal court has yet to issue a decision, and the ultimate fate of DACA may lie with the U.S. Supreme Court.

For more information, see this New York Times article. For historical background information regarding DACA, and the Trump administration’s initial decision to rescind DACA, see our client alert.

Temporary protected status for Honduran nationals ending January 5, 2020

On May 4, 2018, the Department of Homeland Security announced the termination of Temporary Protected Status (TPS) for Honduras. As background, the DHS may designate a country for TPS when conditions in that country prevent the safe return of it nationals, and similarly, may terminate TPS once those conditions have improved. TPS for Honduras will terminate on January 5, 2020, and TPS recipients from Honduras will need to re-register to extend their TPS to that date.

For more information, see USCIS’ webpage for TPS for Honduran nationals.

USCIS and DOJ partnering to combat visa fraud and abuse

On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice (DOJ) announced that the agencies will expand their collaboration to share information and better identify employers who may be discriminating against U.S. workers or violating U.S. immigration laws. The announcement is the latest action following several notices issued in April 2017 announcing efforts to protect U.S. workers and deter and detect H-1B visa fraud and abuse, which was followed by President Trump’s “Buy American and Hire American” Executive Order, all of which called for stricter immigration policies. While the import of the USCIS and DOJ Memorandum of Understanding (MOU) remains to be seen, it certainly reinforces the need for employers to remain vigilant with regard to immigration compliance and visa sponsorship policies.

For more information regarding the USCIS and DOJ MOU , see USCIS’s announcement.

15,000 additional H-2B visas for FY2018

On May 25, 2018, the Secretary of Homeland Security announced that an additional 15,000 H-2B visas (in addition to the 66,000 H-2B visas issued already) will be available for the remainder of fiscal year FY2018. The H-2B program permits U.S. employers to hire foreign workers to temporarily work in the U.S. in nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis.

For more information, see DHS announcement.

Termination of OPT for F-1 students transferring or starting new studies programs

On May 18, USCIS issued a reminder to F-1 students who transfer to another school or begin studies at another educational level that their Optional Practical Training (OPT) and corresponding employment authorization document will automatically terminate. F-1 students impacted by this rule should be sure to work with their education institution(s) and current employer to ensure a seamless transition back to school after engaging in employment pursuant to a grant of Optional Practical Training (OPT).

For more information, see USCIS reminder.

DHS issues five-year cybersecurity plan

The United States Department of Homeland Security (DHS) recently released a 35-page report setting forth a new strategic plan designed to ensure the department and the nation keep pace with the evolving cyber risks.

For more information, see Nixon Peabody’s Privacy Partner blog.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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