Alert: Harmful New Policy on F, M Student and J Exchange Visa Holders

On August 9, 2018, a new policy memorandum by U.S. Citizenship and Immigration Services (USCIS) took effect, reversing over 20 years of policy and changing how the government will calculate unlawful presence for noncitizens in the U.S. on nonimmigrant (temporary) F or M student visas, or on J “exchange visitor” visas.

This will affect not only these nonimmigrant visa holders, but also employers who may want to hire them and help them get a work visa or permanent residency.

Under U.S. immigration law, those who violate the terms of their nonimmigrant visas in any way, with limited exceptions, become ineligible  to transition from one nonimmigrant visa to another or to U.S. permanent residency from inside the U.S.   Instead, as a penalty for the visa violation, they must get their new visas at a U.S. consulate abroad, typically in their home countries.

Generally, violating one’s visa makes the visa holder unlawfully present as of the date of the violation.  Also,  anyone unlawfully present for over 180 days who leaves the U.S. for any reason, even to get a visa at the U.S. consulate, cannot return to the U.S. for three years.  A person unlawfully present for one year or more cannot return for 10 years if s/he departs the U.S.   A waiver of these 3 and 10 year penalties is available, but only to those who have a U.S. citizen or permanent resident spouse or parent and meet additional eligibility criteria.

Most F and M foreign students and J exchange visitors are admitted to the U.S. for “duration of status” (D/S), and have no set date by which they are supposed to leave.  This allows a foreign student who entered initially to get her bachelor’s degree to remain without difficulty if she decides then to pursue a master’s degree.   For F, M, and J visa holders with D/S, even if they somehow violated the terms of their visas, under longstanding USCIS policy, they did not accrue any unlawful presence until the date USCIS or an immigration judge officially found  a visa violation.  This meant that in most cases, an F, M or J visa holder would  be able  get permanent residency without needing to leave the U.S., or at least without having accrued enough unlawful presence to trigger the 3 or 10 year bars to reentry.

Effective August 9, 2018, USCIS now takes the position that any F, M, or J visa holder who violates the terms of her/his visa will begin accruing unlawful presence the day after the visa violation.   For those who violated their visas before the policy change, unlawful presence starts accruing automatically on August 9, 2018.  A USCIS or immigration judge finding of a violation will no longer be needed for unlawful presence to begin.  Some exceptions will apply to a student who petitions for reinstatement to student status after violating his/her visa.

  • How will this rule change prejudice F, M and J visa holders, and affect employers who want them as employees?

It is extremely easy for foreign students and exchange visitors to violate the terms of their visas.  For example, a student who drops below a full course load for one semester, or who has an allowed on-campus job but just once exceeds the 20 hours per week work limit, would have violated her or his student visa.  Under the new policy, unlawful presence will start to accrue, without the student necessarily even being aware of it, on the day the extra hours were worked or the first day that the student’s course load dropped below full-time.  If, more than 180 days later, the student leaves the U.S., for instance to visit family during the summer break, s/he will trigger the 3 year bar and be unable to return to complete her or his studies.

Similarly, suppose the student has not left the U.S., but the violation occurred during the student’s junior year.  The student continues her/his studies, graduates, and begins optional practical training (OPT) with an employer.   The employer wants to keep the student as a permanent employee and petitions USCIS to help her/him get residency through the job.  When the student finally goes to the permanent residency interview, under the new policy, USCIS will rule that s/he violated her status years ago and deny the residency application.  The student instead would have to apply for an immigrant visa at the appropriate U.S. consulate abroad, but doing so will trigger the 10 bar to returning as soon as s/he leaves the U.S. to attend a consular interview.   The employer will lose a valued employee because s/he cannot return for 10 years, and is unlikely to be eligible for a waiver.   This change will also apply to the principal visa holder’s spouse or child, even if that person never violated her/his visa in any way.

You can get more information on this rule change and its impact here.

The U.S. labor supply is aging and our country needs immigrant workers.  But rather than ease the path for F, M, and J visa holders to be able to stay in the U.S., the administration is creating yet another barrier.    In contrast, countries such as Canada are dealing with their shrinking labor pool by liberalizing their immigration laws in order to make it easier and faster for foreign higher education and graduate students to gain permanent status in the country following their graduation.   It is likely not a coincidence that Canada is seeing double digit increases in the number of foreign students enrolling at Canadian universities

Once again, an immigration reform by the current administration is at odds with the country’s economic reality.







ICE Increases I-9 Audit and Worksite Enforcement Efforts

Immigration and Customs Enforcement (ICE), the branch of the Department of Homeland Security charged with enforcing the immigration laws in the interior of the United States, recently announced that it has stepped up the rate of its worksite enforcement efforts  in order to “instill a culture of compliance.”

In a July 24, 2018 statement, ICE announced that in the first 9 months of FY 2018, it had conducted nearly 6100 worksite investigations, a more than 350% increase compared to the entirety of FY 2017.  It also arrested 1659 employers during the same period, compared to 311 in all of FY 2017.

Maine employers should ensure that they are fully complying with the I-9 requirements, but at the same time, are not discriminating against prospective employees due to national origin or documentation presented.   Maine employers who need a refresher on this area of the law should speak with their immigration counsel for legal advice, or can contact MeBIC.

Maine DOL Report on Net Job Growth Worrisome

The Center for Workforce Research and Information of the Maine Department of Labor (DoL) issued its Employment Outlook to 2026 report projecting job and demographic trends that should concern all those hoping for a growing  Maine economy.

The report projects a net gain of only 94 jobs between 2016 and 2026, with shrinkage in office administrative and support positions, retail, and production jobs offset by gains in healthcare related professions.   Unsurprisingly, the over-65 year old population is projected to grow substantially, while the number of 16 to 65 working age people is expected to shrink.

This portends a stagnant economy, unless the state takes affirmative measures to attract new businesses and encourage in-state expansion of existing ones.  But without a growing labor supply, businesses may look to grow elsewhere – in other states, or in other countries where they can get the labor they need.

The DoL’s report underscores the alarm sounded in multiple prior reports, most recently one released last month, that Maine needs to aggressively grow its workforce, including by attracting, retaining and integrating immigrants. 

While federal immigration policy desperately needs reform, there is much that Maine can do at the state and local levels to attract immigrants currently in other states, and to ensure that immigrants already in Maine choose to stay here and can maximize their potential.

In 2019, Maine will have a new legislature and a new governor.  Maine’s business community and economic leaders should insist that those policy makers take steps to show clearly that Maine is welcoming to immigrants.

DACA Update – Courts weighing in, while Congress doesn’t

Over 700,000 young adults who have been educated in the U.S. and are part of our communities and workforce are still living lives in limbo waiting for the fate of the Deferred Action for Childhood Arrivals (DACA) program to be resolved.

The administration rescinded DACA effective March 6, 2018.   Since that date, those who already had DACA status have been able to renew their DACA only due to decisions from federal courts in California and New York finding the rationale for rescinding DACA unlawful, and ordering the government to continue to process DACA renewal applications.  However, these decisions did not order the government to process new applications from first-time applicants, leaving those who met all of DACA’s eligibility criteria except the requirement to be at least age 15 to apply, without the opportunity to gain DACA’s protections and work authorization once they reached their 15th birthdays.

On April 24, 2018, the U.S. District Court for the District of Columbia issued a ruling in NAACP vs. Trump, once again finding that the government’s rationale for rescinding DACA was unlawful, but for the first time, ordering the government to process DACA applications from initial applicants. This decision was applicable nationwide. The judge stayed his decision for 90 days, to allow the Government time to further explain its rationale.

On August 3, 2018, having received the government’s response, the judge in NAACP v. Trump reaffirmed his prior decision, but stayed his ruling for a further 20 days to allow the government time to appeal, which appears likely.

On August 8, 2018, oral argument will be held in another DACA case to be heard by the same U.S. District Court Judge in Texas who had previously struck down proposed programs under the Obama Administration that would have expanded DACA and also provided protections for some parents of U.S. citizen children. Filed by the Texas Attorney General and several other states, the Texas v. Nielson case challenges the legality of the DACA program, rather than the legality of the administration’s decision to end DACA, and asks the court to enjoin DACA.

In July, a coalition of Texas business leaders, including the Texas Association of Business, several chambers of commerce from Houston, Austin, El Paso, and San Antonio among others, as well as businesses such as IBC Bank and Southwest and United Airlines filed a “friend of the court” brief expressing their strong opposition to the Texas A.G.’s effort to end DACA.   They noted that more than 15% of DACA holders live in Texas, and explained the myriad ways those with DACA contribute to Texas’s economy as entrepreneurs, employers, employees, consumers and taxpayers.  They argued that the significant and unrecoverable costs to Texas employers, communities, GDP and tax coffers must tip the balance of equities in favor of not enjoining DACA.

Should the Texas federal court block DACA, there will be a conflict among the federal courts. The administration has already signaled that it will immediately seek a stay of the other federal court decisions requiring the government to continue processing DACA applications, which could lead to DACA holders becoming undocumented and unemployable when their current DACA status expires.  An injunction in Texas v. Nieson also sets the stage for the Supreme Court to consider DACA’s legality.

In short, with three federal courts finding that the administration’s rescission of DACA was illegal, and with a fourth lawsuit hoping to strike down DACA’s legality, the nearly 800,000 DACA holders in the U.S. have no clarity about whether they will be able to remain and contribute to this country, which for all practical purposes is their true home.   Not only are they in limbo, but the U.S. economy is too due to their tremendous impact, as spokespersons for business and economic interests nationwide, ranging from chambers of commerce, to high tech leaders, to the Koch brothers continue to make clear.

The responsibility lies with Congress to provide a clear path forward to permanent residency for DACA holders. To date, Congress has been unable to get the job done, and President Trump continues to hold DACA holders hostage to a restrictionist agenda that would slash family-based immigration and build a costly and likely ineffective border wall.

Until Washington gets it done, it appears the fate of those with DACA will continue to be in the hands of the courts.

Comments Due by August 7, 2020 Opposing Citizenship Question on Census 2020

Update: As noted here, the Census Bureau’s own Center for Economic Studies has concluded in an August 2018 report that adding a question about citizenship status to the 2020 Census “would lead to a ….lower quality population count.”

The National Academies of Sciences-Engineering-Medicine also filed a comment cogently laying out the case for why adding the citizenship question to Census 2020 would “impair the quality of the 2020 census as a whole.”  Read their comment here.

Census 2020, the Constitutionally-mandated decennial count of the U.S. population, is nearly around the corner.

Obtaining an accurate count through the census is critical to the correct apportionment of Congressional representatives among the states, as well as of federal funds for public education, housing, healthcare, housing, transportation, road construction, community development block grant funds, etc. Additionally, census data is widely used by the public, private, academic and nonprofit sectors across the country to help inform social science and other research. Moreover, the data is useful in business, as highlighted in these recent editorial pieces in Forbes and Bloomberg.

Because accuracy is the most important aspect of the census, immigration status is irrelevant.   Whether one is a U.S. citizen, a permanent resident, a person with an application in process, a person with Temporary Protected Status or DACA, or even lacking immigration documents altogether, ideally, everyone in the U.S. should be counted.

But Commerce Secretary Wilbur Ross has proposed adding a question asking if census respondents are citizens or noncitizens.

In the current U.S. immigration climate, the addition of this question guarantees that the census will undercount the foreign-born population living in the U.S.  Even U.S. citizens living with noncitizens may well decline to answer Census 2020.  In an era of eroding due process rights and messages of outright hostility and disparagement of immigrants from the highest echelons of the administration, it would be unsurprising that immigrant families would distrust a Census that to them appears to be ferreting out who is a citizen and who isn’t, while also knowing down to block-level data where they live.

An undercount will hurt everyone in the U.S., including people in Maine. At least seventeen states have sued the Federal Government to block the addition of the citizenship question to Census 2020.  (Maine is not one of them).  Those cases are still ongoing.

However, there is also a public comment period providing an opportunity to oppose  the addition of citizenship question to Census 2020.   Comments are due by August 7, 2018.

Several national organizations have made it easy to submit comments. Here’s a link to one of them from the nonpartisan League of Women Voters.

PLEASE CONSIDER SUBMITTING A COMMENT.  It will only take a minute of your time to do.  The comment is already written, but you can also customize it before you click “submit”.

The Census Bureau has not asked  about citizenship status since the 1950 census, when the question was removed following prior misuse of census data (it was used to help identify Japanese Americans for internment during World War II).   That was a wise course that should continue if the nation wants an accurate population count.  MeBIC has submitted a comment opposing inclusion of the citizenship question.