Lawsuit Challenges New USCIS Policy on 'Unlawful Presence' for Foreign Students and Exchange Visitors
Several institutions of higher education have challenged a recently announced Trump administration policy, effective August 9, 2018, changing the calculation of the number of days of "unlawful presence" for nonimmigrant foreign students
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against an employee because of a Tentative Nonconfirmation until it becomes a Final Nonconfirmation.
USCIS has sent a draft regulation to the Office of Management and Budget that would require employers to pre-register for the H-1B lottery beginning in April 2019.
USCIS said her medals won over the past two years in national and international competitions did not support classification as an "alien of extraordinary ability."
USCIS reminded F-1 students who have an H-1B petition that remained pending on October 1, 2018, that they risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment) because their "cap-gap" work authorization was only valid through September 30.
The judge said in his ruling that there was "evidence that this [termination] may have been done in order to implement and justify a pre-ordained result desired by the White House."
The KIWI Act will allow eligible New Zealand nationals to enter the United States as nonimmigrant traders and investors provided New Zealand grants reciprocal treatment to U.S. nationals.
The latest news at the firm including recent and upcoming events and publications.
1. Lawsuit Challenges New USCIS Policy on 'Unlawful Presence' for Foreign Students and Exchange Visitors
In a new lawsuit filed in the U.S. District Court for the Middle District of North Carolina, several institutions of higher education have challenged a recently announced Trump administration policy, effective August 9, 2018, changing the calculation of the number of days of “unlawful presence” for nonimmigrant foreign students from the date U.S. Citizenship and Immigration Services (USCIS) or an immigration judge finds a violation or orders the student removed to the date the status lapsed.
The complaint states that in 1997, the United States adopted a clear policy governing the implementation of the immigration statute. Recognizing that the determination of whether an individual is “unlawfully present” in the United States is complex and will often turn on administrative discretion, the United States established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided well-intentioned individuals an opportunity to cure their circumstances and remain in the country—or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.
Most international students enter the United States on F or M visas, while some enter on J visas, the complaint notes. Many international researchers, scholars, and professors at higher education and research institutions enter the country on J visas for exchange visitors. In general, when F, J, or M visa holders enter the country, they are not supplied with a date certain on which they must depart. Rather, their visas are valid for the “duration of status,” or “D/S.” For more than two decades, the United States has held that the unlawful presence clock for these individuals begins on the day after a government official or immigration judge adjudicates the individual as out-of-status. That is, unlawful presence begins at the point that an F, J, or M visa holder is provided unequivocal notice that the government believes that the individual is out-of-status.
Now, based on the August 9, 2018, USCIS memorandum, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful‑presence clock will be backdated to the day on which the agency concludes that the visa holder first fell out-of-status. The complaint states that the immigration system “is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits.”
Thus, the new policy’s use of a backdated unlawful-presence clock “will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure,” the complaint states. “This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.”
Moreover, the complaint notes, by disrupting the ability of these individuals to continue studying at their schools—or continuing their research, teaching, or other scholarly pursuits—the August 2018 policy memorandum fundamentally upsets student-school and employee-school relationships. This results in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees. The complaint asserts that the new policy is unlawful for several reasons, including, among other things, that the defendants “failed to undertake the notice and comment required in these circumstances,” such as by not publishing advance notice in the Federal Register and responding to public comments, and by not complying with the Administrative Procedure Act.
Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College joined the lawsuit.
Ronald Klasko is co-counsel for the plaintiffs. A copy of the complaint, Guilford College et al. v. Nielsen et al., is here.
2. E-Verify Reminds Employers Not to Terminate Employees Based on Tentative SSA/DHS Nonconfirmations
E-Verify has issued a reminder that employers may not terminate employees because of a Tentative Nonconfirmation (TNC) until the Social Security Administration (SSA) and/or Department of Homeland Security (DHS) has reviewed the case and the TNC becomes a Final Nonconfirmation.
A DHS or SSA TNC means that the information the employer entered in E-Verify from a Form I-9, Employment Eligibility Verification, did not match records available to DHS or SSA. A DHS or SSA TNC case result does not necessarily mean that a person is not authorized to work in the United States. The employer must give the employee an opportunity to take action to resolve the mismatch. If E-Verify cannot instantly confirm employment eligibility, it must manually review government records. E-Verify will try to do this within 48 hours to let the employer know whether or not the employee is authorized to work.
It is possible for E-Verify to issue a dual TNC, which means the case received a TNC result from both agencies at the same time because information entered into E-Verify does not match records available to both SSA and DHS. E Verify identifies the agency or agencies associated with the mismatch in the TNC Further Action Notice.
E-Verify noted that a TNC for an information mismatch against SSA records may result because:
- The employee has not updated his or her citizenship or immigration status with SSA
- The employee did not report a name change to SSA
- The employee’s name, Social Security number, or date of birth is incorrect in SSA records
- SSA records contain another type of mismatch
- The employer entered the employee’s information incorrectly in E-Verify
A case can result in a TNC with DHS because the employee’s:
- Name, Alien Number, Form I-94 number. and/or foreign passport number are incorrect in DHS records
- U.S. passport, passport card, driver’s license, state ID, or foreign passport information could not be verified
- Information was not updated in the employee’s DHS records
- Citizenship or immigration status changed
- Record contains another type of error
- Information was entered incorrectly in E-Verify by the employer
Employers may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against an employee because of a TNC until it becomes a Final Nonconfirmation. If the employee chooses not to take action on the TNC, the employer may terminate employment with no civil or criminal liability, E-Verify said. The case can be treated as a Final Nonconfirmation and the employer should close the case in E Verify.
For information on this process, click here[Back to Top]
3. USCIS Moving Forward with Proposal to Require H-1B Lottery Pre-Registration
U.S. Citizenship and Immigration Services (USCIS) has sent a draft regulation to the Office of Management and Budget that would require employers, beginning in April 2019, to pre-register for the H-1B lottery. Other changes being considered include prioritizing H-1B visa number allocations based on criteria in a 2017 Trump executive order directing prioritization based on “the most skilled or highest-paid petition beneficiaries”; and changing the order of the H-1B visa lotteries so the chances for applicants with a master’s degree are increased. It is unclear when the draft regulation will appear in the Federal Register.[Back to Top]
4. Canadian Ice-Skating Champion Sues USCIS Over Visa Denial
Canadian figure-skating champion Christina Carreira has filed a complaint against U.S. Citizenship and Immigration Services (USCIS) over the agency’s denial of her EB-1 “extraordinary ability” visa petition to enable her to compete for the United States in international events. Reportedly, she wishes to obtain permanent residence and eventual U.S. citizenship and to join the U.S. team for the 2022 Winter Olympics. USCIS said her medals won over the past two years in national and international competitions did not support classification as an “alien of extraordinary ability.”
The complaint notes that Ms. Carreira is a citizen and national of Canada currently lawfully present in the United States as an athlete performing at an internationally recognized level of performance. She is half of the two-member team of Carreira/Pomomarenko, “the highest ranked competitive junior ice dance team in the world as ranked by the governing body of the sport, the International Skating Union,” the complaint states. The team has won multiple national and international gold and silver medals in various competitions.
The complaint argues that the “nonsensical” denial was “arbitrary and capricious” and “absurd” in its conclusion that “silver and gold awards at national and international…ice skating competitions” are not “nationally or internationally recognized prizes or awards for excellence in the field of endeavor, because [they are] limited to members of that association and participants of those competitions.” By this standard, the complaint notes, even an Olympic gold medal would not qualify.
Michael Piston, counsel for Ms. Carreira, said the “incomprehensible” decision “is part and parcel of the decline in administrative decision-making we’ve seen with the Trump administration.”[Back to Top]
5. F-1 'Cap-Gap' Status, Work Authorization Extension No Longer Valid as of October 1
U.S. Citizenship and Immigration Services (USCIS) issued an alert on September 28, 2018, reminding F-1 students who have an H-1B petition that remained pending on October 1, 2018, that they risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment) because their “cap-gap” work authorization was only valid through September 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS noted in the late-September alert that it might not be able to adjudicate H-1B change of status petitions for all F-1 students by October 1.
USCIS noted that its regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1 to have his or her F-1 status and any current employment authorization extended through September 30. This is referred to as filling the “cap-gap,” USCIS explained, meaning the regulations provide a way of filling the gap between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30, with October 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied before October 1.
USCIS said that while the temporary suspension of premium processing of certain types of H-1B petitions has allowed the agency to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after October 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, USCIS said, “the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization.” If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past September 30, USCIS explained, he or she may continue to work as authorized.[Back to Top]
6. Judge Temporarily Blocks Termination of TPS for Sudan, El Salvador, Haiti, Nicaragua
U.S. District Judge Edward Chen, for the Northern District of California, issued a preliminary injunction on October 3, 2018, temporarily blocking the Trump administration from terminating temporary protected status (TPS) for Sudan, El Salvador, Haiti, and Nicaragua while a legal challenge continues.
The judge said in his ruling that there was “evidence that this [termination] may have been done in order to implement and justify a pre-ordained result desired by the White House. Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution. The issues are at least serious enough to preserve the status quo.”
A Department of Justice statement reportedly countered, “The court contends that the duly elected President of the United States cannot be involved in matters deciding the safety and security of our nation’s citizens or in the enforcement of our immigration laws. The Justice Department completely rejects the notion that the White House or the Department of Homeland Security did anything improper. We will continue to fight for the integrity of our immigration laws and our national security.”
Evidence in the lawsuit, Ramos v. Nielsen, includes email exchanges that appear to indicate that a predetermined goal of terminating TPS was set in advance of a substantial improvement in country conditions. The emails also appear to reflect internal discrepancies in some assessments of conditions with the conclusion that TPS should be terminated. For example, one email notes that under the TPS statute, TPS must be extended for an additional period of 6, 12, or 18 months if the statutory conditions supporting a country’s designation continue to exist, and that a review of conditions in Sudan indicated that it remained unsafe and that the statutory requirements for TPS designation continued to be met. The email includes remarks that the decision memo for Sudan “reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo.”
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7. President Trump Signs 'KIWI Act' With New Zealand on Nonimmigrant Treaty Traders/Investors
The Knowledgeable Innovators and Worthy Investors (KIWI) Act was signed into law on August 1, 2018. The KIWI Act will allow eligible New Zealand nationals to enter the United States as nonimmigrant traders and investors provided New Zealand grants reciprocal treatment to U.S. nationals.
Scott Brown, the U.S. Ambassador to New Zealand, said, “With this addition of New Zealand to our eligible Treaty Traders and Investors visa program, we look forward to even greater bilateral commerce and entrepreneurship. The KIWI Act received overwhelming, bipartisan support in the U.S. Congress, showing the broad and unshakable support for the U.S.-New Zealand partnership. This legislation demonstrates the United States’ continuing recognition of the value of Kiwi investment and innovation.”
Mr. Brown said he agrees with New Zealand’s Minister of Foreign Affairs Winston Peters that this action will “improve access to the United States for New Zealand businesspeople and investors, further developing our trading relationship to the benefit of both countries.” He also agrees with the New Zealand United States Council that the KIWI Act will “lower the barriers to success” for New Zealand businesses in the growing United States economy.
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8. Klasko News
IN THE NEWS
Klasko’s Daniel Lundy weighs in on the recent EB-5 extension for TheRealDeal.com
Daniel Lundy spoke with TheRealDeal.com about the future of the EB-5 extension and Congress’ approach to possible changes.
Digital Journal announces Natalia Gouz’s welcome to Klasko
The Digital Journal covered Natalia’s introduction to Klasko and the extensive experience that makes her a valuable asset to the Klasko team.
RECENT SPEAKING ENGAGEMENTS
Feige M. Grundman
On October 17, Feige returned to her alma mater, Carnegie Mellon University, to speak with students on immigration options and best practices for a successful career and future in the United States.
Feige M. Grundman
On October 19, Feige visited Oberlin College and Conservatory to speak with international students about the legal processes and procedures required to remain in the U.S. as artists after graduation.
Ronald Klasko | Anu Nair
Ron and Anu spoke at the two-day AILA/IIUSA EB-5 Industry Forum in Chicago, a conference that offers unprecedented opportunities to learn, network, and drive business development.
Elise A. Fialkowski
Elise hosted a luncheon in partnership with Women Owned Law on Tuesday, October 30. Key speaker, Stacy Clark discussed how lawyers have chosen particular niches and have become the “go-to” lawyers for their practice areas of law.
UPCOMING SPEAKING ENGAGEMENTS
Ron will be presenting at Henley & Partners’ 12th annual Global Residence and Citizenship Conference in Dubai in November 2018.
On November 6, Ron will be joining Visa Franchise at their event focusing on U.S. E-2 visa options.
Feige M. Grundman l Andrew J. Zeltner
Feige and Drew will decipher immigration facts from fake news at NAFSA’s three-day conference beginning November 6.
Ron will be joining the LACC District Chapter of AILA in a two-day conference addressing the needs of immigration attorneys whose work focuses on legal issues in the Latin America and the Caribbean jurisdiction.
Elise A. Fialkowski
On November 14, Elise will be moderating a panel covering student work eligibility in this full-day CLE program for the New Jersey State Bar Association.
Andrew J. Zeltner l Natalia Gouz
Drew and Natalia will be leading a workshop at Princeton University on November 15, focusing on immigration issues relevant to international postdocs.
ICYMI: RECENT BLOG POSTS AND ALERTS
The Emergence of Citizenship by Investment and the E-2 Visa Option Oliver covers the E-2 visa, and it’s many benefits. The ability to be paired with a third-country citizenship, has made this visa a viable option when there may be no others for a foreign national.
FAQs on Litigating an EB-5 Petition Denial
Ron answers common questions and concerns regarding the EB-5 process in an FAQ.
An Immigration Timeline for the Best and the Brightest: EB-1 Extraordinary Ability, Outstanding Researcher, and EB-2 National Interest Waiver
In this infographic, we explain the timeline of events for those applying through the EB-1 and EB‑2 (NIW) programs and the actions required to complete the process.
More Harm Than Good? Regional Center Terminations:
Jessica DeNisi weighs the pros and cons of EB-5 projects and investors associating with an alternate regional center after a termination of their initial regional center.
CLIENT ALERT: USCIS To Begin Implementation of NTA Policy:
Drew Zeltner discusses USCIS implementing removal proceedings against some foreign nationals if their applications are denied and are not in a period of authorized stay.
A Hauntingly Fun Halloween at Klasko!
Holiday season is here and the staff at Klasko is just getting warmed up celebrating! Staff members took part and voted in a number of contests including: Best Individual Costume, Best Group Costume, and Best Decorated Work Space. Congratulations to the winners!
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.[Back to Top]