Part 3: 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 concludes a three-part series exploring the impact of these changes.

In previous weeks, we discussed two new policy memoranda affecting international students: one reinterpreting unlawful presence and the other instructing USCIS officers to initiate removal proceedings against foreign nationals whose applications for certain benefits are denied.

In this third and final piece, we will examine another new policy that went unannounced everywhere, except for a small tweak to USCIS' website. That change involves third-party placements for STEM OPT students.

Most F-1 students who graduate from a course of study in the U.S. are eligible for a one-year period of Optional Practical Training (OPT), a type of employment authorization that allows graduates to work for any U.S. employer without the employer's sponsorship. The employer would then need to petition for the worker to change status to H-1B, if otherwise eligible, in order to work for longer than one year in F-1 status. However, students with degrees in certain science, technology, engineering or mathematics courses of study (STEM degrees) qualify for an additional two-year period of OPT, called a STEM OPT extension, in many cases.

Denying placement at third party worksites

To qualify for STEM OPT extensions, students are required to create a written training plan describing the training objectives for that additional two-year period. For several years, USCIS approved STEM OPTs containing such training plans that clearly indicated the student would be placed at a third party worksite, as is common practice in the engineering and IT consulting industries, where work is often done on a contract basis. However, during the summer of 2018, USCIS modified its website to indicate that STEM OPT students cannot work at third party worksites -- i.e., worksites not owned or controlled by the STEM employer. This small tweak to the language on USCIS's website constitutes a major policy shift that was not announced anywhere else.

It is unclear what this change means for students already working on STEM OPT for third party worksites. These students may be found out of status during site visits or when they attempt to change status to H-1B.

Heightened risk of deportation?

Because of USCIS's aggressive and enforcement-oriented approach to adjudicating benefits applications, there is growing fear -- if not outright panic -- in the U.S. international student community that students will be deported for a  minor and inadvertent status violation. As these current students convey their predicaments to their communities abroad, it is no surprise that wealthy international students -- who need to document their ability to pay full tuition out of pocket before even being issued a student visa -- are spending their money on higher education in countries that welcome their talent and tuition dollars. These policy changes are likely driving the drop in new enrollment by international students reported in the 2018 Open Doors Report.

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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