November 21, 2014
President Obama has taken highly anticipated and welcome steps to fix our immigration system, which is titled “Immigration Accountability Executive Action”. Remember when Beyoncé dropped her entire album and all videos at once last year amazing everyone?! Well, this feels like the immigration law version of that!
So much is packed into this plan and so many memoranda were issued on November 20, 2014 providing an initial view of the changes. Although President Obama can’t do everything by executive action, he has broad authority to act and has made some important first steps that will benefit millions of people, including not only people who are here illegally, but also business people, people in the US military, students, and more.
Not all the details of the President’s plan have been clearly defined yet, but here is an outline of some of the key elements. Keep in mind that these changes have not yet been implemented, so beware of anyone telling you you can apply for any of these new programs now. But, it is important to know what they are so we can all start getting ready!
Expansion of Deferred Action for Childhood Arrivals (DACA)
The DACA program will be expanded.
•The age cap will be lifted. This means that the program will no longer be limited to people who were under 31 years old on June 15, 2012.
•People will need to show continuous residence since January 1, 2010, instead of since June 15, 2007.
•DACA will also be expanded to 3-year increments (instead of 2)
This will go into effect approximately 90 days after November 20, 2014 (around February 18, 2015).
New Program for Parents of U.S. Citizens and Green Card Holders
The government is introducing Deferred Action for Parental Accountability (DAPA) of U.S. citizens and lawful permanent residents (aka green card holders). Parents can request deferred action and work authorization if they:
•Have continuous residence in the United States since January 1, 2010;
•Are parents of U.S. citizens or lawful permanent residents born on or before November 20, 2014; and
•Do not have criminal convictions or other issues that make them ineligible.
This will go into effect approximately 180 days after November 20, 2014 (around May 19, 2015).
Expansion of Provisional Waivers
The President’s action will also allow spouses and children of lawful permanent residents (aka green card holders or LPRs) as well as the adult children of US citizens and LPRs to apply for provisional waivers to minimize separation of families while immigrant visa applications are pending. (Provisional waivers are required for people who are inadmissible only because of unlawful presence.)
This will go into effect once the government issues new guidelines and regulations.
Families of US Armed Forces Members and Enlistees
Based on the request by the Department of Defense, the government will expand parole-in-place, i.e., allowing people to stay in the U.S. and also makes them eligible to apply for a green card, and deferred action to spouses, parents, and children of US citizens or lawful permanent residents who seek to enlist in the US armed forces. Previously, this benefit was only considered for family members of US military service members and veterans.
Enhancing Opportunities for Entrepreneurs, Researchers, and Inventors
Two administrative improvements are being developed to enhance opportunities for foreign inventors, researchers, and founders of start-up enterprises who want to conduct R&D and create jobs in the United States.
•The National Interest Waiver standards will be clarified with the goal of allowing inventors, researchers, and start-up founders to qualify based on benefit to the U.S. economy.
•Parole authority will exercised in favor of inventors, researchers, and start-up founders who have been awarded substantial US investor financing or otherwise will innovate and create jobs through development of new technologies or cutting-edge research
Changes to OPT for Students
USCIS will be developing regulations to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign science, technology, engineering, and mathematics (STEM) students and graduates.
These are some of the main areas of impact of the President’s bold announcement – and there are many others in the works. Given all the changes, if you are about to apply for some form of benefit or relief, think about how these upcoming changes may impact what you want to do. They may change or expand your options. Stay tuned for more details!
October 17, 2014
Welcome international students! With school in full swing, you may have questions about your status, or there may be things you just don’t know but should.
As for most students in the United States, for international students university life means a mixture of educational, professional, and social experiences and experiments. As a student, you want to expand your horizons, find opportunity, and have a good time. While you do so, keep the following in mind.
Anyone in the U.S. as a visitor of one type or another (in immigration lingo, a “nonimmigrant”) must maintain status. Why is maintaining status important? If you don’t maintain status, you are subject to removal from the United States. In other words, you can be deported. For someone in F-1 status, maintaining status means a combination of things. Some of the key issues are discussed below.
Maintaining Status: Course Load & Transfers
Maintaining a full course load is required for maintaining status. Hate that class on Psychology? Find that Chemistry class overwhelming? Before you drop it, check to make sure you are not below the number of credits defined by your Designated School Officer (DSO) as a full course load. If you are not sure about whether the courses you have settled on add up to a full course load, go and see your DSO. Overall, the requirement is that you make normal progress toward completion of your program, but get the specifics from your DSO.
There are some circumstances where you can reduce your course load, but you have to get approval from your DSO first. So, if you get sick and need to reduce your course load because of that, get your DSO’s approval first. If you have difficulty with English, U.S. teaching methods, or have been placed in the wrong level of a course, you can ask your DSO to approve a reduced course load. But you can only do this once, and have to resume a full course load the next semester. Also, if you are at the end of your studies and only have a few requirements left to meet, you can get DSO approval to take only the courses you need to finish instead of a full semester course load.
If you want to transfer to another school, be sure to follow the required procedures and obtain all necessary permission before you do so. If not, you could be subject to removal for failing to maintain status.
Maintaining Status: Work Authorization
An F-1 student must have approval before engaging in anything that the government considers work. If you work without authorization, you are out of status and you would not be able to get your student status reinstated. The rules about when and where someone with F-1 status can work are extensive and quite strict. If you want or need to work, you should go speak to your DSO first, to ensure you get the proper authorization to do work that you are allowed to do. If your DSO does not have clear answers, consult with an immigration lawyer before you proceed with your planned action.
Keep in mind that there is no clear definition of work in the immigration context, and things that you may not consider “work” may well be seen as such by the government. You might ask: can I volunteer? Can I do an unpaid internship? Be careful – those activities may constitute “work” under the US immigration laws, a topic that will be addressed in an upcoming blog. (Stay tuned.)
For an F-1 student who may have entrepreneurial aims, one possible form of work authorization would be OPT (Optional Practical Training), so long as the work is related to the area of study. (If you are in an English language training program, you cannot get OPT.) Because OPT typically lasts for one year (if a STEM degree is involved, it can be up to 17 additional months if the employer is enrolled in E-Verify), a student with entrepreneurial aims who has started up her own company and wants to run it day-to-day after her OPT expires would need to seek another status that can provide work authorization before taking that step. The potential nonimmigrant options for entrepreneurs include H-1B (for professional positions requiring at least a bachelor’s degree), E-2 (treaty investor), O-1 (extraordinary ability), and the USCIS Entrepreneur Visa Guide provides a helpful overview of the possibilities and some of the requirements.
There are limitations to a person self-sponsoring, and many of the nonimmigrant options such as the H-1B and the O-1 require a separate, sponsoring employer that can make decisions about hiring, firing, supervising or otherwise controlling the employee’s work. (The requirement of an employer-employee relationship and how that requirement can be met according to USCIS is outlined in a 2010 USCIS memorandum, generally referred to as the “Neufeld Memo.”) Unless a company can show that there is sufficient independent right to control the owner of the company as an employee, such as through a Board of Directors or other position or entity to whom the owner must answer, it is difficult for a company to sponsor an owner. Despite the obstacles, solutions are possible; but before pursuing them, a student should be sure to have the issues carefully analyzed by an immigration attorney who can craft an appropriate solution.
Maintaining Status and Protecting Your Admissibility: Social Elements
A lot of things that U.S. college students do can land them in hot water, but can have even greater negative impact on foreign students studying in the United States. For example, fighting or other violent behavior against a person or property can result in a failure to maintain status if a student is convicted for a crime of violence for which a sentence of more than one year of imprisonment is possible. Of course, being convicted for a crime of violence that fits this bill amounts to an aggravated felony that can have multiple other negative impacts on a student – it makes a student deportable and, if the crime also qualifies as a crime involving moral turpitude, it makes the student inadmissible. (Being inadmissible would mean that if the student is later seeking to be readmitted to the U.S. after travel, seeks to obtain a new visa stamp at a consulate, or is applying for permanent residence in the United States, this conviction would likely prevent them from doing so).
Other stereotypical college activities that could impact a student’s admissibility include use of alcohol and drugs. Pop culture in the U.S. often makes light of alcohol and drug use by college students – think of all the movies featuring fraternities and their antics, and popular TV shows like The Simpsons (“To Alcohol! The cause of . . . and solution to . . . all of life’s problems”) and South Park. One classic scene from South Park (Season 2, Episode 204) captures the pop culture attitude about experimentation in college. In this scene, Chef, an adult, is speaking with 4th graders Stan, Kyle, Kenny, and Cartman:
Chef: I just want to tell you that drugs are bad.
Stan: We know, we know, that’s what everybody says.
Chef: Right, but do you know why they’re bad?
Kyle: Because they’re an addictive solution to a greater problem, causing disease of both body and mind with consequences far outweighing their supposed benefits.
Chef: And do you have any idea what that means?
Cartman: I know. Drugs are bad because if you do drugs you’re a hippy, and hippies suck.
Chef: Look children: this is all I’m gonna say about drugs. Stay away from them. There’s a time and a place for everything and it’s called college. Do you understand?
Chef’s advice to “Stay away” from drugs should be heeded by foreign students. You may ask why – isn’t marijuana legal in some places in the United States? Although marijuana has been decriminalized in many states and cities in the United States, the immigration laws have remained draconian and there is basically a no tolerance policy. Foreign students could end up being inadmissible for drug-related actions on various grounds including public health, criminal, and misrepresentation grounds.
Alcohol use can also lead to immigration related problems for a foreign student. An individual applying for a visa at a U.S. consulate must be referred to a panel physician where they have had a single drunk-driving arrest or conviction within the last 5 years (unless they have already been through the process, were found eligible for the visa and have had no subsequent drunk driving arrests or convictions), two or more drunk driving arrests or convictions in the last 10 years, or if there is any other evidence to suggest an alcohol problem. Although there is no inadmissibility ground related directly to alcohol abuse or dependence, the problem arises under the public health ground of inadmissibility. Being subjected to an examination by a panel physical opens the foreign student up to a number of potential problems and risks: delay with the issuance of the visa either due to the time it takes for scheduling and completing the exam itself, or having to wait out a lengthy remission period; or worse, a potential finding of inadmissibility on public health grounds and denial of the visa. Although it may be possible to get a waiver of inadmissibility and thus be granted a visa, that process can take 6 months or more. For international students, the pop culture humor around experimentation with drugs and alcohol in college does not apply. “Just say no” is the safer approach.
If you have failed to maintain status, you may be able to be reinstated, depending on the circumstances. If you have worked without authorization, you would not meet the prerequisites for reinstatement – which is why knowing the contours of what “work” means is so important.
If your reinstatement request is approved, what a relief! The visa in your passport remains valid and you can continue your studies. If your reinstatement request is denied, the visa in your passport is rendered invalid, and you would accrue unlawful presence from the date an immigration judge or DHS determines that you have violated status. If you accrue 180 days of unlawful presence, you could face a 3-year bar on readmission; if you accrue a year or more of unlawful presence, you face a 10-year bar on readmission.
As you can see, maintaining status is crucial for students. Failure to maintain status can make you ineligible to extend your status, change your status, adjust your status (i.e., get a green card) and it can also mean removal from the United States. Know your status and what impacts it – better safe than sorry!