Part 2: Small Changes in Immigration Policies with Respect to International Students Have Major Impact

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In this series, Partner Danielle Rizzo explores how several small changes to student visa policy by the Trump Administration are having a major impact on the international student population in the United States. These policies are creating a climate of fear and are already resulting in a significant decline in the number of new international students enrolling in U.S. universities. Today is the second in a three-part series exploring the impact of these changes.

Last week we discussed the new USCIS unlawful presence memo, which radically changes the government's approach to determining whether international students are subject to a three- or 10-year bar to the United States. In this installment, we will review another new USCIS policy memorandum on Notices to Appear (or "NTAs").

NTAs are the charging document used by the federal government to initiate removal/deportation proceedings against a foreign national. Over the summer of 2018, USCIS published a new NTA memo stating that USCIS will begin issuing NTAs whenever the agency denies a change of status or extension application, or any other benefits request that renders someone out of status. (For instance, the denial of an application for adjustment of status to lawful permanent residency on Form I-485 will render most individuals out of status, with the exception of those maintaining H or L nonimmigrant status.)

Seat of immigration enforcement shifts

Historically, while USCIS had authority to issue NTAs, they rarely did so. NTAs are typically issued primarily by ICE, the enforcement branch of the Department of Homeland Security ("DHS"). Because USCIS is tasked primarily with adjudicating benefits applications, issuance of NTAs was deemed outside the scope of its operations. The NTA memo changes that policy dramatically, making USCIS a primary immigration enforcement arm of DHS.

Because of the enormity of this policy shift, USCIS later stated that it would delay implementation of the memo in order to institute operational guidance governing these new procedures. This revised guidance states that:

  • Effective October 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.
  • Starting Nov. 19, 2018, USCIS may also issue NTAs based on denials of Forms I-914/I-914A, Applications for T Nonimmigrant Status; I-918/I-918 Petitions for U Nonimmigrant Status; I-360 Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions); Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant; I-730 Refugee/Asylee Relative Petitions; and I-485 Applications to Register Permanent Residence or Adjustment of Status with these underlying form types.

The combination of the new NTA policy and the F-1/J-1/M-1 unlawful presence memo is particularly daunting for international students and scholars, as it could mean that students who graduate and seek change of status to H-1B (as is often the case) who may have inadvertently violated status could find themselves being deported.

Taken together, these policies are likely a major reason for the drop in new enrollment by international students reported in the 2018 Open Doors Report.

Next week: Third Party Placements for STEM OPT Students

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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