Immigration In Troubled Times: What You Need to Know LA NAFSA 2009 David A. M. Ware David Ware and Associates Attorneys at law email@example.com 800 537 0179 www.david-ware.com Student/EV News • OPT Changes: 4/8/08 Rule (73 Fed. Reg.68, 18944-18956) – Creates 150 day application window: 90 days before completion, up to 60 after completion of course of study. – Extends OPT until October 1 of same year, if student’s OPT ends on or after April 1, and student’s H1B petition is ―selected‖ for adjudication in lottery. SEVP guidance also provides for mini extensions until notification of ―selection.‖ – Allows 17 month extension for those earning degrees in Science, Technology, Engineering and Math. Ice.gov/sevis/stemlist.htm. Must apply during initial 12 months of OPT; employer must enroll in E Verify. See dhs.gov/ximgtn/programs/gc_1185221678150.shtm. Automatic extension of 180 days if timely filed. OPT Changes – Establishes maximum cumulative unemployment period of 90 days during initial 12 months; 120 days during 29 months if STEM extension granted. • But SEVP guidance allows self employment, contract or agency work, short gigs, and volunteer work during first 12 months. Must be at least 20/hrs per week. – Up to 10 day period between jobs does not count towards limit. – Time outside US does not count if authorized leave or working for employer abroad. – Only unemployment after April 8, 2008 counts towards limit. – SEVP will enforce by denying future benefits, terminating record in individual cases. – See, Ice.gov/sevis/updates_postcompletion_opt.htm OPT Changes • Reporting: New rule establishes triple reporting requirements: – Student to DSO: • initial 12 months: should report any change of address, name, interruption of employment, to DSO [within 10 days--SEVP]; • STEM extension: must provide within 10 days change of legal name, address, employer name or address, and loss of employment; also ―validation report‖ each six months if on STEM extension [not in SEVIS 5.8] – Employer to DSO: (STEM ext. only) must report if student separated from employment within 48 hours – DSO to SEVIS: – Initial 12 months: must report in SEVIS within 21 days: any change of name, residential or mailing address, – Also during STEM extension: change of employer name or address, end date of employment, as reported by student/employer [ 8 CFR 214.3(g)(3)(i)]. OPT Changes • Excellent NAFSA analysis of new rule: – Nafsa.org/regulatory_information.sec/regulat ory_document_library.dlib/sevis/opt_29_mont h – Major questions: • Terminate record if student OOS due to unemployment? No. • What will CIS/CBP/SEVP do about student who is OOS? Terminate record, deny benefits? • Mitigating factors re unemployment? Illness, jail? • Affirmative contact with student necessary? (No-- except informing them of responsibilities when applying) Travel and New OPT Rule • Return to US while on initial OPT: valid OPT card, endorsed I-20, employment letter, valid visa. • Return on ―cap gap‖ extension: same as above, except card will be expired; will need endorsed ―cap gap‖ I-20. • Return on STEM extension: same as for initial grant. • COS to H abandoned if travel prior to approval; ok after. Efren on ―Last Action Rule‖ • ―A change of status takes effect automatically on the effective date noted on the Notice of Action (Form I 797), even if there is an intervening admission [as an F 1]…The ―Last Action Rule‖ does not affect the [approved] change of status [to H]… because the last action [on October 1] is the taking effect of the change of status.‖ Efren Hernandez, Chief, Business and Trade Services Branch, Office of Adjudications, USCIS, 8/18/04. New Fee Schedule—10/27/08 • I 901 F/M visa applicants $200 • I 901 J visa applicants $180 • I 901 J au pair, camp counselor, summer work/travel $35 • I 901 J govt sponsored $0 • I 17 Initial SEVP cert $1700 plus $655 site visit • I 17 Change of ownership $1700 • Site visit if adding campus $655 • Recertification $0 Student/EV News • In March of last year, DOS issued its annual F, J, and M update: – Prioritize F, J, M applications – Attendance at community college, language program, lesser known school not per se reason to refuse visa – Whether course of study offered in home country not cause to refuse visa – SEVIS is final record regarding whether student/EV accepted into program and document properly issued – CCD now permits viewing SEVIS comments section Student/EV News • SEVP 5.8 launched on April 18, 2008, incorporating functionalities related to the new OPT rule. • SEVP slides on the launch can be found at ice.gov/sevis Student/EV News • DOS has created new Student/EV Visa Center for inquiries on F, M, J visa applications – Schools and EV sponsors can email firstname.lastname@example.org – Foreign national applicants should call 202 663 1225 Student/EV News/Inquiries • Inquiries must include date, nature (eg, delay, denial, etc) and: • Post information – Consular post involved – Have you contacted post directly? – When? – How? – Name of person contacted, if known – Attach correspondence, if any Student/EV News/Inquiries • Inquiries should include: – Foreign National’s information • Full Name as in passport • Nationality • Place of Birth • Date of Birth • Current visa status if in US • Type of visa applied for • NIV appointment number – DSO/RO contact info • Name, institution, phone, email • See http://www.nafsa.org/regulatory_information.sec/ state_department_student_exchange General News • Interfiling: In a recent liaison meeting between AILA and USCIS Service Center Operations, the latter suggested that the best way to ―interfile‖, that is, file a document or other information in a case that is already pending, is to attach a brightly colored sheet to the packet, clearly indicate that you are interfiling, and note the previous receipt number on the cover sheet. General News--TPS • Burundi: terminated 5/2/09 • El Salvador: extended til 7/5/10 • Honduras: extended til 7/5/10 • Nicaragua: extended til 7/5/10 • Somalia: extended til 9/17/09 • Sudan: extended til 5/2/10 • Liberia: deferred enforced departure til 3/31/09 General News • New I 765, revision date, 4/8/08, must be utilized as of May 8, 2008. • Incorporates changes as a result of new OPT rule of April 8: – Three OPT codes instead of one: pre completion; post completion and STEM extension – If STEM chosen, requests information about major and employer’s E Verify registration number. Student must also submit copy of degree reflecting STEM major (if diploma silent, submit transcripts) General News—E Verify • Launched in 2007 • Supplementary to I 9 Employment Eligibility Verification • System compares employee’s SSN and other personal data to information in SSA and DHS databases. Does not verify immigration status. • Still voluntary for most employers; however, federal contractors now required to enroll; several states require enrollment, eg, MS. General News-- E Verify • Within three days of hire, employer must submit employee’s information. System responds: – Employment authorized – SSA tentative non confirmation – DHS verification in progress • If tentative non confirmation received, employee, must be given eight federal business days to resolve with agency. General News –E Verify • E Verify has bugs; up to 10% of its responses may be erroneous. • Employer must sign Memorandum of Understanding allowing DHS and SSA to inspect its E Verify records and speak to enrolled employees periodically. Visa Processing Update • Paperless consulates: DOS moving to entirely electronic visa applications using new Form DS 160. Program is being piloted at Nuevo Laredo, Monterrey, Vancouver, Montreal, Hong Kong. Will cover all of Mexico in a few months. • Both Hands Now: as of 8/20/08 a ten print scan is required of all non immigrant visa applicants. Visa Processing Update • Changes to VWP Program: – 11/17/08: Expanded to include Czech Republic, Estonia, Hungary, Latvia, Lithuania, S. Korea, and Slovakia. – 1026/08: Must have machine readable PP issued by a VWP country to use VWP; those who don’t must get visa. – 1/12/09: All VWP travelers must register in Electronic System for Travel Authorization (ESTA) prior to coming to US. See www.cbp.gov/xp/cgov/travel/id_visa/esta/ • Note that VWP entrants are unable to change status, generally unable to extend stay, and must go home to get a visa. VP: New TCN Rule in Mexico • On about November 1, the 10 US consulates comprising ―Mission Mexico‖ instituted new policies with regard to third country nationals (TCN’s) applying for non immigrant visas in Mexico. • TCN’s who qualify under the new policy can apply for a visa at any of the 10 posts throughout the country—Tijuana, Guadalajara, Nogales, Monterrey, Hermosillo, Mexico City, Nuevo Laredo, Matamoros, and Mérida. Visa Processing: TCN Rule • Who is eligible: Persons renewing a visa in the same category where the original visa was obtained in the home country, country of residence, or at a Mexican post. This does not apply to B 1/B 2 tourists/business visitors. • Who is ineligible: – out of status or overstay – VWP entrants – undocumented – persons seeking a visa in a different category from their previous visa(s) [new] – Persons applying for a B 1/B 2 Visa Processing: TCN Rule • Ineligible classes: – Persons seeking a visa in same category as previous visa, but that visa obtained outside home country or country of residence (except that visa obtained at a Mexican post is ok) – Persons subject to NSEERS – Persons holding travel docs from Syria, Sudan, N. Korea, Cuba, or Iran Visa Processing News • Drunks, Druggies, etc: Don’t forget that arrests or convictions for DUI, or any admission of drug use, can result in referral to DHS panel physician and refusal of visa. Also, any arrest or conviction, even if very minor, will result in delay of visa issuance, while DOS confirms criminal record and outcome with FBI. The Undocumented WHO ARE THE UNDOCUMENTED? Entered without inspection (EWI) or by fraud. Entered legally but status has expired – see I-94. Entered legally and have facially valid status but have not complied with conditions of admission. Estimated number: 8 to 15 million Most EWI’s are Mexican, but increasing numbers are Brazilian, Central American, Asian. Undocumented do not rely on government services, except emergency medical care, and certain public health programs. Undocumented generally only accept work US workers will not perform. CONSEQUENCES OF BEING UNDOCUMENTED Not eligible for COS or EOS Deportable Not eligible for F, M, J or other nonimmigrant benefits * OPT * Transfer * On- or off-campus work authorization * Endorsement of I-20 for travel Generally not able to get SSN or Drivers License Subject to 3 or 10 year bar if leave US, unless D/S and no formal finding of OOS. SEVIS termination by DSO or automatically does not start accrual of unlawful presence. Consequences… • Immigration and Customs Enforcement has identified three priority enforcement categories: • Persons with final orders of removal • Convicted criminals • SEVIS violators • And, sorry, folks, they have tons of new agents, so it’s not just Middle Eastern males on their radar anymore…. CAN „T THEY JUST “GET LEGAL?” Usually not….. 1996 restrictions on cancellation of removal 1996 restrictions on dependency on juvenile court Expired I-94 –automatic visa cancellation – must return home for visa; does not apply to those who are D/S and OOS; Unlawful presence -- 3 or 10 year bar 245(i) expiration 4/30/01 • F reinstatement regulations -- usually not granted if OOS more than five mos. J reg similar. OOS and reentry: POE’s have SEVIS termination data; may not be readmitted; may have to pay SEVIS fee. Difference between “Out of Status” and “Unlawful Presence” • Unlawful presence – generally any period following expiration of I-94 or finding by Immigration Judge or INS that person not maintaining status. Exceptions: asylum applicants; those under 17; battered spouses/children; TPS; VD; Canadians with no I-94; timely filed EOS or COS; AOS. • Out of Status – violation of conditions of admission. For F or J student: no show unauthorized employment drop out expired I-20/DS 2019 improper transfer below full load w/o DSO/RO permission expired passport conviction of serious crime D/S who is OOS does not accrue unlawful presence until IJ or DHS finding of OOS. If unlawful presence, can a visa be issued? More than 6 mos/less than 1 year -- 3 year bar 1 year or more – 10 year bar ANY unlawful presence may indicate lack of NIV intent Section 212(d)(3) waiver unlikely, but possible If D/S and OOS, or OOS but I-94 has not expired, can a visa be issued? Yes, but negative factor Depends on length, severity and circumstances within/beyond student’s control Negative factors compounded by bad conditions in home country, insufficient ties THE BOTTOM LINE: NEVER ISSUE AN I-20 OR DS-2019, AND ADVISE AN UNDOCUMENTED PERSON TO LEAVE THE COUNTRY TO OBTAIN A VISA OR ―REINSTATE,‖ WITHOUT CAREFULLY EXAMINING ALL ISSUES RELATING TO STATUS AND/OR UNLAWFUL PRESENCE, AND REFERRING THE PERSON TO AN ATTORNEY IF NECESSARY. Can I Admit The Undocumented? Yes! Despite changes in F, M and J law and regulations, neither DHS nor Congress has taken steps to restrict admission of the undocumented to higher education. Legacy INS believed it needed Congressional authorization to do this. Official Legacy INS Statement re: Enrollment “Congress has not adopted legislation which would permit states and state-owned institutions to refuse admission to undocumented aliens or to disclose their records to the Immigration and Naturalization Service (INS). In addition, aliens who are in proceedings or whose applications for reinstatement to or extension of student status are pending may enroll full-time pending resolution of their immigration status.” INS Memo dated 01/14/94, published in Interpreter Releases 3/14/94, page 366. Does any Law Require Me to Admit Them? Probably not, though somewhat a gray area: 1 LULAC v. Wilson – Supremacy Clause – defeated CA Proposition 187. US Constitution Supremacy Clause, Equal Protection Clause. Title VI of Civil Rights Act of 1964 – national origin discrimination: but if all treated equally? State human rights laws. No state, except VA, has a law or rule prohibiting their enrollment. DHS does not prohibit nor discourage enrollment. 1 99 F Supp. 1244 (C. D. Cal., November 14, 1997) What do other schools/states do? Most admit the undocumented, but policies vary widely. Many “policies” are not in writing, not supported by opinion from legal counsel. UGA System one of best (adopted 9/25/00). Most schools do not have a written policy, and will admit. Some schools do not have a written policy, but a “tradition” of not admitting, but could provide no legal reason for doing so. A few religious schools responded, “It is against our moral code to admit the undocumented.” New Policy In Alabama • Adopted September 2008 by Board of AL Community College System • Affects all students admitted after 9/25/08 • Affects community college students only • Does not mention undocumented specifically • Requires presentation of certain documents in order to gain admission • Most of these, eg, AL driver’s license, are unavailable to the undocumented. For Those Who Wear Many Hats • Don’t forget to advise students about H1B filing deadline of April 7. Exempt from quota: – Previously counted in last six years – Employer is non profit affiliated with higher ed (may often include K 12 schools, state agencies) – Employer is govt or non profit research org – Employer is higher education institution (except vocational schools) – QUOTA STILL OPEN AGAINST ALL ODDS! Many Hats • Don’t forget to advise about Diversity Visa Lottery, usually October to December each year. Warn students about ―services‖ which claim to increase chances of winning; some are fake, none can increase chances • ONLY website for lottery: www.travel.state.gov E Verify—Contractor Rule • Requires all federal contractors and subcontractors to verify (E-Verify) all existing employees on federal contracts and all new employees upon registration in E-Verify. • Limited to contracts of more than $100,000 and in duration of more than 120 days, which contain E Verify (FAR) clause. • Defines employee as working ―directly for the federal contract‖ (does not apply to overhead). Contractor Rule • Exception for institutions of higher education: Need only E Verify employees working on contracts, not all employees. • Deadline postponed to June 30, 2009. E-Verify and New Employees • I-9 must be done as always within 3 days of hire • Extremely important E-Verify must also be done within 3 days of hire and at the same time as the I-9 • Only time E-Verify cannot be done immediately is when employee does not have Social Security Number Registering For E-Verify • Enroll at https://www. vis- dhs.com/employerregistration • Employer (federal contractor or subcontractor) must enter into an agreement with The Department of Homeland Security by signing a Memorandum of Understanding (MOU). • The Memorandum contains the expectations and user guidelines of DHS. What the Economic Crisis Means for Intl Ed • Decreased state tax revenues/budgets • Fewer resources to attract students • Fewer resources for exchange programs • All countries affected to greater or lesser degree: fewer international students/exchange visitors • Will stimulus help? Perhaps in limited ways with some research programs; hard to say until we see results. Legislative Update • Despite Obama’s promises on the campaign trail and post election, the new Administration’s push for comprehensive immigration reform will probably be delayed this year as the economic picture worsens. • It would be politically very difficult to talk about legalization, or increasing visa numbers for essential workers, when many Americans are losing their jobs. • Expect small-bore improvements, such as the Dream Act (recently reintroduced in both houses), and bigger reforms in 2010 or 2011, depending on the economy. • But the administration is starting the discussion now. See http://thecaucus.blogs.nytimes.com/2009/04/09/obama -to-push-immigration-bill-as-one- priority/?scp=2&sq=Obama%20immigration&st=cse QUESTIONS? ¿Preguntas? Fragen? Perguntas? Domande? Questiós? Vragen?