Federal Judge Blocks New Asylum Restriction

On July 24, 2019, a federal judge in California has blocked the Administration from enforcing new asylum restrictions for people crossing the U.S.-Mexico border. The ruling by U.S. District Judge Jon Tigar in San Francisco came hours after a judge in Washington decided to let the rules stand while lawsuits played out in court. Judge Tigar noted: "The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country. Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress. Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress. This new Rule is likely invalid because it is inconsistent with the existing asylum laws."

Further to restricting asylum, the Administration has just signed on July 26, 2019, an agreement with Guatemala on that appears to allow the U.S. government to send certain asylum applicants to Guatemala, forcing them to seek asylum there. Immigration Impact has reported the this “Safe Third Country” agreement, will place thousands of asylum seekers at risk in a country ill-prepared to process a high volume of applications for protection and with safety problems of its own.

To avoid sending people back to a country where they could be seriously harmed, U.S. law allows any person who reaches the border to apply for asylum, with limited exceptions. Among those exceptions are individuals who could be removed to another country (Safe Third Country) where their life would not be endangered if the United States has an agreement with that country to receive them. This would not include people who are nationals of that country. The United States has only one Safe Third Country agreement – with Canada – in place since 2002. It requires asylum seekers who arrive at a port of entry along the U.S. northern border to return to the country they just passed through (the U.S. or Canada) and apply for protection there. The agreement was made with a general understanding that both nations were safe countries whose asylum systems were sufficiently robust to handle the processing of those claims.

But an arrangement of this nature with Guatemala is untenable.  Currently, Guatemala is one of the leading countries from which people are fleeing to the United States due to pervasive violence, impunity, poverty, and food shortages. The U.S. Department of State advises travelers to reconsider travel to many parts of the country, noting that “violent crime, such as armed robbery and murder, is common.”

FAQ’s to Visa Retrogression-

1.       WHAT IS THE “QUOTA BACKLOG”?

The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a "Priority Date." The priority date is the single, most important, factor in any immigration case.

2.       WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?

Employment-Based First Preference (EB-1) Employment-Based Second Preference (EB-2) Employment-Based Third Preference (EB-3) Other Workers

3.       WHAT DOES EB-1 MEAN?

Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

4.       WHAT DOES EB-2 MEAN?

Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

5.       WHAT DOES EB-3 MEAN?

Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

6.       WHAT DOES “OTHER WORKERS” MEAN?

Other Workers includes positions that require less than two years of experience.

7.       WHAT IS THE “PRIORITY DATE”?

If your category is employment-based and requires a labor certification, the priority date is established on the date a labor certification is filed with the State Workforce Agency. If your category is employment-based but does not require a labor certification, then the priority date is established on the date the CIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to your case until the I-140 has been approved.

8.       WHY IS THE PRIORITY DATE IMPORTANT?

In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

9.       CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?

There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

10.   THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?

The Priority Date is determined by the CIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.

11.   WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING “U” (UNAVAILABLE) AND “ MM/DD/YY” (QUOTA BACKLOG)?

Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e. 07-01-02), it is considered to be the cut-off date, and that means that there is a “quota backlog”. Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

12.   WHAT DOES “C” MEAN?

“Current” – this means that there is no quota backlog in this category.

13.   WHAT DOES IT MEAN TO BE “CURRENT”?

If there is a “C” in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

14.   IF THE VISA BULLETIN SHOWS A DATE OF 6-1-18 AND MY PRIORITY DATE IS 6-1-18, IS MY PRIORITY DATE CURRENT?

No. In order for the priority date to be current, it must be a date prior to the date published in the visa bulletin.

15.   HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?

Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. (i.e., on 9-12-18, the DOS released the dates effective as of 10-1-18). Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

16.   THE CUT-OFF DATE IS JANUARY 1, 2015. DOES THIS MEAN THAT IT WILL TAKE 5 YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?

No. It all depends on how many visas are used. Please see the answer to the above question.

17.   I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?

You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer’s green card process.

18.   VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OF CITIZENSHIP OR COUNTRY OF BIRTH?

Your country of birth is what determines your country of chargeability.

19.   MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE’S COUNTRY OF BIRTH HELP ME?

Your spouse’s country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse’s country of birth.

20.   BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT? CAN WE USE OUR CHILD’S COUNTRY OF BIRTH FOR ELIGIBILITY?

No. You can use your spouse’s country of birth for eligibility. However, your child’s country of birth cannot be used.

21.   I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?

Yes. Quota backlogs can apply to everyone, regardless of where they are from.

22.   MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?

No. The labor certification process is not affected by quota backlogs.

23.   CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?

No. The visa category cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed. Also, since quota backlogs are based on the filing date, it is not in your interest to refile a case now and obtain a 2019 or later priority date.

24.   THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?

Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.

25.   MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT’S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT’S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?

Yes. Even through your case was approved, your dependent’s application is still based on your priority date. The CIS cannot approve the dependent’s application until the priority date is current.

26.   THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES THE QUOTA BACKLOG AFFECT ME?

Yes. The CIS can work on the pending application. However, they cannot approve the application unless the priority date is current.

27.   THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT CIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?

Yes. The CIS will continue to process the I-140 and it can be approved, regardless of the quota backlog.

28.   CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT CIS IF I AM SUBJECT TO A QUOTA BACKLOG?

No. Under CIS guidelines, inquiries may not be made on a case unless the priority date is current.

29.   IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL CIS STILL ISSUE A BIOMETRICS NOTICE AND INTERVIEW DATE?

They may. CIS can still process the case but cannot approve it until the priority date is current. Therefore, you will still receive a biometrics notice and eventually an interview date. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for biometrics appointment and interview.

30.   MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?

No. Even though the only issue may have been the security and background checks, the CIS cannot approve the case until the priority date is current.

31.   DOESN’T CIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?

No. Immigrant visa numbers are not assigned to a case until right before approval.

32.   CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?

Yes. As long as you have a pending I-485 application at CIS, you are eligible to apply for and receive EAD and AP documents.

33.   MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (I.E. CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?

No. In order to add a dependent to the pending application, the priority date must be current.

34.   IF THE CASE IS PENDING AT CIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?

The CIS may ask for updated employment information. However, new photos and medical exams should not be required.

35.   IF I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?

Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remains current.

36.   I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?

The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent’s H-4 status may also be extended. If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one-year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.

37.   IF I AM NOT ABLE TO FILE THE I-485 AND THEN I LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?

No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.

38.   DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A US CITIZEN. I HAVE MINOR US CITIZEN CHILDREN. I HAVE A US CITIZEN SPOUSE. CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?

Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a US citizen child who is over 21 or a US citizen spouse, please contact us to discuss your options

Check-in with Department of State’s Charlie Oppenheim regarding the August 2019 Visa Bulletin

General Trends and Observations:  Employment based demand has increased steadily since late May 2019 in the EB-1, EB-2, EB-3 and EB-3 Other Worker categories.

Whereas in past years, Charlie often predicted that employment-based preference categories which retrogressed towards the end of the fiscal year "would have a full recovery" in October (the beginning of the next fiscal year), his prediction in the August 2019 Visa Bulletin is much more guarded. Charlie merely indicates in Section D. of the August 2019 Visa Bulletin that "every effort will be made to return these final action dates to those which applied for July." This means that while Charlie hopes that he will be able to bring these dates back to where they were in July, demand levels are so high and unpredictable, practitioners should not automatically count on a return to the July Final Action Date levels at the start of FY2020.

Charlie cautions that an immediate cut-off in visa usage, similar to that for EB-3 and EB-3 Other Workers, could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high for these categories. No forward movement in these Final Action Dates should be expected before October for certain employment-based visa categories. Any potential movement in these preferences would be subject to a change in the current USCIS demand pattern, and a larger than expected return of unused July numbers by overseas posts.

EB-1:

  • As predicted last month, the Final Action Date for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) retrogresses in August 2019 almost two years to July 1, 2016. The Final Action Date for EB-1 China, which was May 8, 2017 in July, joins the rest of world countries in retrogressing to July 1, 2016 in August 2019. The Final Action Date for EB-1 India holds at January 1, 2015.

EB-2:

  • The week prior to Memorial Day, Charlie started receiving data from USCIS that was different than what he had received in the past. This data showed that demand in the employment-based categories started picking up, with the daily totals increasing quickly. For example, through May 21, 2019, 1,800 numbers were used in the EB-2 category. Between May 22nd and May 31st, another 1,300 numbers were used, with this high pace continuing into June. Not only is the actual demand high, but as mentioned earlier, USCIS's projected future usage also remains high relative to the monthly demand targets for number use.

As a result of this high demand, all countries are subject to a Final Action Date in August. EB-2 Worldwide (including EB-2 China and EB-2 for all countries except for India) will have a Final Action Date of January 1, 2017, while EB-2 India advances one week to May 2, 2009.

 EB-3:

  • EB-3 China Other Workers holds at November 22, 2007.

  • The August 2019 Final Action Date for EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam remains at July 1, 2016. Charlie indicated that it is very difficult to say at this time whether these categories will become current again in October 2019. EB-3 India, which already had a Final Action Date, retrogresses further to January 1, 2006 in August.

Between April and May 2019, EB-3 demand increased over 25%. From May to June, the overall demand increased by more than 45%. During the first week of July 2019, EB-3 had already used 36% of the total numbers used during the entire month of June. This in turn necessitated immediate action to limit future number use by applicants with priority dates later than the Final Action Dates imposed for each country in the August 2019 Visa Bulletin. This is happening because number use is approaching the worldwide annual limit, and some countries have reached or are very close to reaching, their annual limits. USCIS interviews that were already scheduled may continue in USCIS's discretion. If the application is approvable, rather than receiving a visa number, USCIS's request for a visa number will be placed in Charlie's pending demand file and will be authorized for use once the applicant's priority date is once again "current". Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner.

Charlie cautions that an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if demand continues to remain high.

The fact that demand has increased so dramatically is not a surprise to Charlie. What is unexpected is that it is happening much sooner than expected. Prior to FY2018, if such corrective action was required, it normally occurred in September. In addition, the issues that arose in FY2018 were attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that it may be necessary to limit/cut-off future use of numbers means that all of the numbers available under the applicable annual limits will have been used. However, for applicants for which the ability to immediately file an I-485 adjustment of status application is critical to remaining in the U.S., the retrogression may have significant negative impact

If you have questions about planning, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

August Visa Bulletin

Each month, the U.S. Department of State publishes the Visa Bulletin, listing all "preference" categories and states whether or not a backlog exists for each one. For August 2019, there is now  a worldwide backlog for all applicants for the EB-1, EB-2, and EB-3 preference categories.

This means that only those who filed Form I-140 on or before the date given in the Visa Bulletin are able to file for or be granted permanent resident status. The listed date for all countries other than China and India in the EB-1 category is July 1, 2016. China and India are backlogged to July 1, 2016 and January 1, 2015, respectively, meaning that only those applicants whose I-140 was filed on or before that date are able to file Form I-485 to become permanent residents, or if their I-485 applications are already pending, to be approved.

While, in the EB-2 preference category, the listed date for all countries other than China and India is January 1, 2017. China and India are backlogged to January 1, 2017 and May 2, 2009, respectively. 

These backlogs may require employers or immigrants to extend H-1B, O-1, and other nonimmigrant categories until such time that visa numbers do become available, so it is strongly advised to plan accordingly and to allow enough time so that no gap exists which could affect the ability of the applicant to work in the United States and/or travel abroad. We will be checking each month to monitor the Visa Bulletin and will provide updates.

Federal District Court on OPT error

On July 3, 2019, the District Court in Pennsylvania ruled on Dalgic v. Misericordia University (M.D. Pa. July 3, 2019), denying Defendant's Motion for Summary Judgment and granting Plaintiff's Cross-Motion for Summary Judgment.

Plaintiff, a Turkish-born former student in Misericordia University's (MU) Doctor of Physical Therapy Degree Program who was on an F-1 visa, alleged negligence and negligent interference with prospective contractual relations.

Plaintiff sought to remain in the United States after completing the Program for post-completion Optional Practical Training (OPT), which required a recommendation from MU under federal law. Once submitted, Plaintiff had to submit his OPT application within 30 days of the date the Designated School Official (DSO) entered the recommendation, the earliest time being 120 days before his graduation.

Plaintiff's OPT application was denied because MU's DSO prematurely submitted the OPT recommendation more than 120 days before Plaintiff's graduation. The court found that the undisputed material facts showed that MU's negligence in prematurely filing the recommendation without properly curing the early filing caused the denial of the OPT application, which entitled Plaintiff to summary judgment on both claims.

MU also was not entitled to summary judgment on the negligent interference claim because a special relationship existed between MU and Plaintiff. Plaintiff justifiably trusted MU and the DSO to guide him through OPT, which was one of the DSO's job responsibilities, and this trust is consistent with obligations imposed on MU under federal law to employ a DSO and the Department of Homeland Security's characterization of DSOs as the "biggest resource" for an M or F visa student. MU was also aware of Plaintiff's prospective contract for post-OPT employment and did not dispute that it acted negligently in handling his OPT application.

This case highlights the important role the DSO plays for both the student and the school.

STEM OPT site visits have started

A new provision in the STEM OPT rule allows Department of Homeland Security (DHS) to perform site visits to employer locations that train STEM OPT students.

Site visits ensure that STEM OPT students receive structured and guided work-based learning experiences and reduce the potential for abuses of the STEM OPT extension. During the site visit, DHS’s intent is to confirm that information reported on the student’s Form I-983 (Training Plan) concerning the training opportunity is accurate, while not placing an unnecessary burden on employers.

As part of a site visit, DHS may:

  • Confirm that the employer has sufficient resources and supervisory personnel to effectively maintain the program.

  • Ask employers to provide the evidence they used to assess wages of similarly situated U.S. workers.

It is important that supervisors and employees all know that the job is "training."  If you have questions about a site visit, please feel free to reach out and schedule a consultation with one of the attorneys (info@iandoli.com).

How to know which employers are enrolled in E-Verify for STEM OPT students

F-1 students in Science, Technology, Engineering and Math (STEM) related programs who plan to apply for a 24-month Optional Practical Training STEM extension may only work for employers enrolled in E-Verify. The Department of Homeland Security (DHS) provides an E-Verify Employers Search Tool that students may find helpful in their search for eligible employers.

New Court Decision on STEM OPT WashTech Litigation

The Department of Homeland Security (DHS) reformulated the F-1 STEM optional practical training (OPT) benefit, with the "24-month STEM OPT Rule" [81 FR 13039] that became effective on May 10, 2016. The Washington Alliance of Technology Workers union (WashTech) filed suit in the U.S. District Court for the District of Columbia against both the 2016 24-month STEM OPT rule and the standard 12-month post-completion OPT rule, raising many of the same substantive issues WashTech had brought up in the suit they filed against the 2008 17-month STEM OPT rule.

In a July 1 decision, the U.S. District Court for the District of Columbia found that DHS's 2016 STEM OPT rulemaking also had the legal effect of reopening the legacy United States Immigration and Naturalization Service's 12-month post-completion OPT regulation that had been finalized in 1992. This means that the Court no longer considers a challenge to DHS's statutory authority to implement standard post-completion OPT to be outside the statute of limitations. Additionally, the WashTech plaintiffs can challenge DHS's underlying statutory authority to establish not only STEM OPT but standard post-completion OPT as well.

On July 22, 2019, the Government answered the WashTech Complaint, and asked the Court to dismiss the case. If WashTech prevails however, STEM OPT as well as OPT are in danger.  Iandoli Desai & Cronin will continue to monitor the lawsuit and provide updates as they become available.

Harvard University President: U.S. Immigration Policies Make Student Attendance "Unpredictable and Anxiety-Ridden"

In a July 16 open letter to U.S. Secretary of State Mike Pompeo and acting Homeland Security Chief Kevin McAleenan, Harvard University President Larry Bacow laments the negative impact that some recent U.S. immigration policies are having on students and faculty. In the letter, Bacow cites visa delays, regulatory red tape, security crackdowns, increased scrutiny on students and scholars from specific countries, and issues related to Dreamers, echoing concerns expressed by others in the U.S. higher education community. Please refer to the article in Bloomberg for more details.

U.S. College and University Presidents Call on Congress to Support International Students

On June 24, thirty Michigan college and university presidents wrote a letter to the state’s congressional delegation expressing concerns with current U.S. immigration policy and practice and identifying actions Congress can take to help Michigan schools attract and welcome international students and faculty. This follows a similar letter sent in early May of this year from the presidents of more than two dozen New Jersey colleges and universities to members of its congressional delegation. NAFSA: Association of International Educators is aware of several similar letters that are being drafted to congressional delegations from other states.

These letters identify five actions that Congress can take to reinvigorate and streamline the foreign talent pipeline to our colleges and universities:

  • Preserve duration of status for foreign students and exchange visitors (F and J status): For decades, students and scholars have been granted immigration status that lasts for the period of time they are engaging in their studies or research, known as duration of status or D/S. Alarmingly, the Department of Homeland Security (DHS) included the elimination of D/S in its Unified Agenda of Regulatory and Deregulatory Actions published this spring. Maintaining D/S is necessary because the time for study or research can fluctuate given the changing goals and actions of the student or scholar. U.S. Citizenship and Immigration Services (USCIS) already struggles with long backlogs and delays, and it will be unable to timely adjudicate the filings that this change would generate. USCIS average processing times have increased by 46% over the past two fiscal years and 91% since fiscal year 2014. Ending D/S for students and scholars would exacerbate an existing problem by adding an enormous number of new application filings to extend status.

  • Protect experiential learning opportunities for foreign students: Optional Practical Training (OPT) permits foreign students studying in the U.S. to apply for “practical training” with a U.S. employer in a job directly related to their course of study. According to a 2019 report from the Niskanen Center, experiential learning opportunities like OPT for international students lead to increased innovation and higher average earnings, while not costing U.S. workers their jobs. The program allows students to supplement their education with valuable experiential learning and on-the-job-training as they start their careers. DHS included elimination of OPT in its Spring and Fall Unified Agenda of Regulatory and Deregulatory Actions last year. Experiential learning like OPT for international students is a key component of U.S. higher education. Access to this opportunity attracts international students; many competitor countries like Australia and Canada use their similar programs to attract students away from the United States.

  • Reduce administrative processing delays for entry visas: In a number of recent cases, graduate students and faculty members have been forced to miss or defer entire semesters because their entry visa applications were mired in “administrative processing” at the State Department. Administrative processing is the time period outside of “normal” processing times in which cases that appear to meet the basic eligibility requirements are referred for additional background checks. Applicants are generally not provided with any explanations, nor are they told how long the additional processing may last. This situation creates untenable uncertainty for the applicant, the university, and other affected parties, especially as anecdotal reports indicate an increase in the amount of time that cases are remaining in this category. This can be especially problematic for foreign students and academics, whose commitments in the U.S. align with an established academic calendar.

  • Mitigate processing delays for OPT: Unfortunately, processing times for OPT applications have increased from a previous maximum of 90 days in 2016 up to 5½ months today. Processing times of this length create an enormous burden for students. The consequence of these delays is that students are unable to begin their job or program on time and, in many instances, they may lose out on the position altogether. This harms not only the students, but also the employers seeking to hire qualified, U.S.-trained workers for a practical training opportunity.

  • Alleviate increased Requests for Evidence: Over the past year, employers seeking to hire foreign-born employees have seen a dramatic increase in the number of “Requests for Evidence” (RFEs) from USCIS, particularly for H-1B visas, which allow U.S. employers to hire highly-skilled foreign workers in specialty occupations. We understand that USCIS has a responsibility to ensure that it has necessary information about eligibility. The scope of the increase, however, is staggering. RFEs for H-1B visa petitions more than doubled between the third and fourth quarters of FY 2017. These requests delay the issuance of visas for employers by months and increase legal costs. Meanwhile, our professors and other employees are putting their lives on hold as they wait for start dates.