Foreign Student Status And Student Work Authorization

Jackson Lewis P.C.

Foreign students wishing to study in this country may have whiplash over the Trump Administration’s many moves.

Early in 2020, a federal court blocked the Department of Homeland Security (DHS) from changing the rules regarding duration of status admission to the United States. Under the Trump Administration’s proposed policy, students might unknowingly accumulate unlawful presence and become subject to the three- and ten-year bars to admission. The Court found the policy violated not only the Administrative Procedures Act (APA), but also the Immigration and Nationality Act (INA). Colleges hoped the Administration would not appeal the decision and put foreign students back into limbo. But the Administration did appeal. Then, at the end July, the Administration unexpectedly withdrew its appeal. That may just mean, however, that the Administration is planning to try a different route to achieve its goals.

Proposed rules changing unlawful presence calculations, changing the duration of status designation, establishing a fixed time period for admission, and reforming practical training options have been on the DHS’s regulatory agenda for some time. When the Spring 2020 Regulatory Agenda appeared (late) on June 30, 2020, those proposed rules were all there again – scheduled for publication by the end of 2020. While the schedules set out in regulatory agendas are frequently aspirational, with the presidential election looming, the Administration may want to fast track some of these agenda items.

During the COVID-19 pandemic, the Administration has taken 740 administrative actions thus far. Some actions it would like to make permanent. In the proclamations the President issued in April and June 2020 that block the entry of immigrants and non-immigrants in H, L, and J status, the Secretaries of State, Homeland Security, and Labor were ordered to issue regulations to ensure foreign nationals would not disadvantage U.S. workers. Regulations regarding student status and student work authorization could fall into that category, along with regulations tightening H-1B requirements and removing H-4 EADs.

Jackson Lewis attorneys will continue to follow these developments and provide updates as they become available.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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