Hot Topics in U.S. Immigration Law 2020 Edition at Washington International Education Conference
Immigration Lawyer Pauline Schwartz shares insights on recent changes in U.S. immigration law, discussing hot topics and a nationwide injunction impacting F, J, and M nonimmigrants. Stay informed on crucial updates in the field.
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Hot HotTopics Topics In U.S. Immigration Law 2020 Edition Washington International Education Conference Washington International Education Conference February 21, 2020 February 21, 2020
Introduction Introduction Immigration Lawyer Pauline Schwartz Immigration Lawyer Pauline Schwartz 24 Years 24 Years of Immigration Law Experience of Immigration Law Experience Based in Washington, DC with Clients Worldwide Based in Washington, DC with Clients Worldwide Many International Student Clients Many International Student Clients Also Familiar with University Administration and Also Familiar with University Administration and DSO Perspectives DSO Perspectives A Former International Student in the USSR A Former International Student in the USSR Tell a Lawyer Joke Here Tell a Lawyer Joke Here
Why WhyHot Topics for this Presentation? Hot Topics for this Presentation? SO SO MANY MANY Changes Changes to Immigration Law and to Immigration Law and Policy Policy Most changes within the past two years Cannot limit presentation to one topic Impossible to select a relevant topic far in advance Changes can happen on a weekly and even daily basis Changes can be overturned as suddenly as they were announced
Format Formatof Today s Presentation of Today s Presentation Will (attempt to) Discuss Six Hot Topics Time at the conclusion of prepared remarks for questions Please write questions on index cards that we will collect I will address as many questions as possible I will have office hours in a nearby meeting room to answer individual or group questions for about 2 hours after the presentation
Hot HotTopic #1 Topic #1 Good News! Nationwide Injunction Good News! Nationwide Injunction Court Grants Grants Nationwide Permanent Nationwide Permanent Injunction on on Troublesome 2018 USCIS Memo! Troublesome 2018 USCIS Memo! The August 9, 2018 Memorandum on the Accrual of Unlawful Presence and F, J, and M Nonimmigrants Was a Major Change in Policy F, M, and J students would be considered out of status (OOS) immediately, no longer in D/S Students would begin to accrue ULP the day after a status violation occurs. Contrast to the prior USCIS and INS policy Which did not consider students admitted in D/S to be OOS until there was a status violation found by an Immigration Judge or following the denial of a USCIS benefit application Federal Federal Court Injunction
Hot HotTopic #1 Topic #1 Good News! Nationwide Injunction Good News! Nationwide Injunction Case Name: Guilford College et al. v. Wolf et al. in the U.S. District Court for the Middle District of North Carolina What happened? Plaintiff s Motion for Summary Judgment was GRANTED by U.S. District Judge Loretta C. Biggs on February 6, 2020 Judge Biggs also granted a Permanent Nationwide Injunction, which prohibits USCIS from using the August 9, 2018 Memorandum The Government s Motion for Summary Judgment was Denied The Court Terminated the case
Hot Topic #1 Hot Topic #1 Good News! Nationwide Injunction Good News! Nationwide Injunction The USCIS Memorandum is hereby declared invalid, set aside, and enjoined nationwide in all applications. Judge determined that the Memo constituted a substantial rule and violated the APA s notice & comment rulemaking procedures Judge also found that the Memo impermissibly conflicts with the text of the INA regarding ULP Effect: USCIS cannot use the Memo, but may in the future attempt rulemaking
Hot HotTopic #2 Topic #2 Trump Travel Bans Trump Travel Bans Current Muslim Ban Current Muslim Ban 4.0 Iran Iran: No Immigrant Visas (IV) or NIV, except F/J/M Libya Libya: No entry for IV/LPR or B1/B2 visas Nort North Korea h Korea: No entry for ALL IV/LPR and NIV includes F/J/M Somalia Somalia: No entry for IV/LPR only Syria Syria: No entry for ALL IV/LPR and NIV includes F/J/M Venezuela Venezuela: No entry for certain govt officials with B visas Yemen Yemen: No entry for IV/LPR or B1/B2 visas Most F-1 Visas are NOT affected There is a waiver process, 2% or less are approved 4.0 List of countries affected List of countries affected:
Hot HotTopic #2 Topic #2 Trump Travel Bans Trump Travel Bans New 2020 Travel Ban 5.0 proposed on January 31, 2020 May go into effect as early as February 21, 2020 Countries to be added include: Nigeria, Eritrea, Sudan, Tanzania, Kyrgyzstan, and Myanmar Will ban issuance of IV/LPR only Will not affect F/J/M visa issuance Rationale: The countries do not meet US security and information sharing standards Current Travel Ban (Muslim Ban 4.0) will still remain in effect
Hot HotTopic #3 Topic #3 The New Public Charge Rules The New Public Charge Rules Initial implementation held up by litigation that went to the U.S. Supreme Court, which decided on January 27, 2020 to allow DHS to enforce its new public charge rules Effective Date for those inside the U.S. February 24, all states except Illinois) Applies to LPR/AOS applicants and NIV/EOS/COS applicants DHS will apply a prospective, forward-looking determination of whether a person is likely to become a public charge dependent on government assistance May consider age, health, family status, assets, resources, and financial status, and education and skills New Form for COS (I-539 with additional questions about receipt of public benefits) New Forms for AOS (I-485 and I-944 very intrusive questions including credit scores, evaluation of foreign degrees, etc.) February 24, 2020 2020 (in
Hot HotTopic #3 Topic #3 The New Public Charge Rules The New Public Charge Rules Public Charge Public Charge Issues and Overseas Visa Applicants Issues and Overseas Visa Applicants Public Charge denials, mostly for IV, have increased within the past 3 years DOS has proposed a new public charge rule, similar to the DHS rule. Rule will apply to IV and NIV applicants Draft new DOS Form DS-5540 Public Charge Questionnaire as of now, will be applied to IV applicants only Very intrusive form asks about US health insurance within 30 days of entry, income, assets, IRS tax transcripts, debts, public benefits, education and skills
Hot HotTopic #4 Topic #4 Novel Coronavirus and Travel Issues Novel Coronavirus and Travel Issues Presidential Proclamation on January 31, 2020 Non-USC/non-LPRs who have been in mainland China in the past 14 days are not allowed to enter the U.S. Certain NIV travelers including diplomats (A/G visas) and crewmembers (C/D visas are not subject to the ban Those allowed entry that have been in mainland China in the past 14 days must arrive at one of 10 specified airports for additional screening USCs and LPRs are subject to an up to 14-day quarantine in the U.S. and special airport screening
Hot Topic #4 Hot Topic #4 Novel Coronavirus and Travel Issues Novel Coronavirus and Travel Issues Effects on Visa Issuance and Travel: U.S. Embassies and Consulates in China have temporarily suspended regular visa services effective February 10, 2020 and reduced staffing DOS issued China Travel Advisory on February 2, 2020: Do Not Travel USCIS and ICE/SEVP advisories
Hot HotTopic #5 Topic #5 F F- -1 (or 1 (orother) other)Visa Application Rejections Visa Application Rejections Can happen to new (first time) students and also to returning students whose visa has expired or been cancelled. How to overcome this huge hurdle? Must look to the reasons behind the denial/rejection
Hot HotTopic #5 Topic #5 Visa Application Rejections Visa Application Rejections Possible Possible Reasons for Denials/Rejections Reasons for Denials/Rejections: Incomplete application or supporting documentation INA Section 221(g) Failure to Overcome Presumption of Immigrant Intent INA Section 214(b) Prior Immigration Violations/Overstay/Reinstatements INA Section 212(a)(4) Public Charge Criminal Issues: DWI, Marijuana, Drugs
Overcoming Overcoming214(b) Visa Rejections 214(b) Visa Rejections Best Practices Best Practices Proving Proving Nonimmigrant Intent with documents Nonimmigrant Intent with documents Bank statements of student and family overseas Proof of student s relationships to family members Proof of family s residence in home country Proof of relatives jobs in home country Foreign government scholarship Additional evidence of strong ties to home country
Overcoming OvercomingStatus Status- -Based Visa Rejections Based Visa Rejections Best Practices Best Practices Detailed affidavit/written statement of timeline of US activities and status violations and/or reinstatement periods Supported by I-20s, USCIS applications, receipt notices and approval notices, transcripts to show academic progress and school attendance Make it easy for DOS to understand the timeline and to see that there is no unlawful presence or less than 180 days ULP
Overcoming OvercomingCriminal Criminal- -Based Visa Rejections Based Visa Rejections Best Practices Best Practices Visa applicant must get certified records from US courts showing the dispositions of ALL arrests, even those not resulting in convictions Can retain a US lawyer to get these documents Some students may not realize that they were arrested or charged US lawyer can do FBI fingerprint rap sheet check Retain lawyer to evaluate whether criminal conviction is legally a ground of inadmissibility Very complex and constantly developing area of the law, involves the intersection of state/federal criminal statutes with immigration law
Overcoming OvercomingVisa Rejections if Inadmissibility Finding Visa Rejections if Inadmissibility Finding Apply for INA Section 212(d)(3) Waiver (if eligible) General Nonimmigrant Visa Waiver Can waive most grounds of inadmissibility except for espionage, overthrow the US govt, genocide, Nazi persecution, and serious adverse foreign policy consequences Legal standard = Balancing test of positive vs. negative factors
INA INA212(d)(3) NIV Waiver 212(d)(3) NIV Waiver Best Practices Best Practices Get a Lawyer! Get a Lawyer! Get a Lawyer! Get a Lawyer! Get a Lawyer! Get a Lawyer! There is No specific application form Apply at the consulate after receiving a rejection. Can bring waiver documents to visa interview Submit detailed cover letter plus supporting documents If prior drug/alcohol arrests or admitted usage, evidence of passing a recent drug test in home country can help Other evidence of rehabilitation
Hot HotTopic #6 Topic #6 Change of Status from B to F Change of Status from B to F Becoming much more challenging Facing push-back, RFEs and denials from USCIS Best practices Get a lawyer Get a lawyer the student should not attempt this by herself Need to file Bridge Form I-539 applications to extend B1/2 status for the entire time that the COS to F-1 is pending. May need to file multiple Form I-539s for 6-month B extensions
Hot HotTopic #6 Topic #6 Overcoming USCIS Denials of COS Overcoming USCIS Denials of COS How to overcome denial of Change of Status (Form I-539) from B to F? Evaluate days of ULP and whether consular processing for F-1 visa is advisable It s possible to file appeal (Form I-290B) of the COS denial, concurrently with Nunc Pro Tunc (late- filed) B-2 status extensions, especially if student relied upon bad advice Examples from my experiences
Other Immigration Options for Students Other Immigration Options for Students Asylum Change of Status to Work Visa (H-1B, O, E) Green Card through marriage/family member TPS/DACA T (Trafficking) or U (Victims of Crime) Visas Refer student to licensed attorney for these inquiries
CAUTION CAUTION Beware of Giving Legal Advice Beware of Giving Legal Advice Unless the DSO or other Student Advisor is a licensed U.S. attorney, they cannot give legal advice advice Even simple decisions and completing DHS forms can be considered legal advice Immigration issues are very specialized, so a university s general counsel may not be qualified to address these issues cannot give legal
Questions Questionsand (hopefully) Answers and (hopefully) Answers What do the (index) Cards reveal? Surprise me! Lawyering is sometimes like improv comedy
Keep Keepin touch! in touch! Want more information? Want more information? Contact Contact the Immigration advising services tailored to the needs of Immigration advising services tailored to the needs of your campus your campus Confidential individual student immigration Confidential individual student immigration consultations consultations On On- -campus and video conference workshops for campus and video conference workshops for students, college administrators, and advisors students, college administrators, and advisors the Pauline Schwartz Law Firm Pauline Schwartz Law Firm regarding: regarding: Direct Phone: (202)870 Direct Phone: (202)870- -7934 Email: pauline.m.schwartz@gmail.com pauline.m.schwartz@gmail.com Website: Website: www.paulineschwartzlaw.com www.paulineschwartzlaw.com 7934 Email:
