IMMIGRATION POLICY UPDATES

The restrictions that allow entry to the United States through land ports of entry along the U.S.-Canada and U.S. Mexico borders for "essential travel" only have been extended through October 21, 2020.

U.S. Customs and Border Protection (CBP) and the Transportation Security Administration (TSA) published notices in the Federal Register that terminate COVID-19 designated arrival airport restrictions, effective September 14, 2020 at 12:01 a.m. Eastern Daylight Time. The restrictions had required all flights to land at one of 15 designated U.S. airports if they carried persons who within the last 14 days traveled from, or were otherwise present within, one of the countries designated in the five country-specific Presidential Proclamation coronavirus bans. The country-specific coronavirus proclamations themselves remain in place, however, subject to specific exemptions.

On September 11, 2020, U.S. Citizenship and Immigration Services (USCIS) extended until January 1, 2021 the COVID-19 flexibilities it established for responses to Requests for Evidence (RFEs) and other similar response-based notices and requests, and filing date requirements for filing Form I-290B, Notice of Appeal or Motion.

On September 11, 2020, The U.S. Court of Appeals for the Second Circuit issued a decision that stays the prior injunction to these regulations; U.S. Citizenship and Immigration Services (USCIS) published information on their website on September 22 indicating how they will apply the regulations retroactively to February 24, 2020. If you have a pending I-129 petition filed on your behalf and/or a pending I-539 application as of the September 22 notice date and which was filed after the July 29th injunction date, USCIS may ask for missing evidence prior to adjudication. USCIS will not readjudicate any petitions/applications that have already been approved following the injunction date and prior to the September 22nd notice date. Read the final rule here.

• To reduce the potential transmission of COVID-19 to consulate staff and other visa applicants, the U.S. Department of State (DOS) announced on August 25th that it has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously the waiver was allowed only for those applicants whose visas had expired within 12 months; the new expiration period has now been extended to 24 months. The policy is in effect until December 31, 2020. The DOS Foreign Affairs Manual instructs consular officials to apply additional requirements for F and J nonimmigrants as follow:
  • SEVIS status indicates "initial" or "active".
  • F students: renewing visa to continue participation in the same major course of study even if at a different institution OR attend the same institution even if in a different major course of study.
  • J exchange visitors: renewing visa to continue participation in the same program, with the same SEVIS number from the previously issued visa.

• On July 29, 2020 a U.S. District Court instructed the U.S. Dept. of Homeland Security (USDHS) that they cannot enforce the Inadmissibility on Public Charge Grounds Final Rule for any period during which there is a declared national health emergency in response to COVID 19 (see U.S. Citizenship and Immigration Services (USCIS) announcement).
• This applies to all petitions and applications adjudicated after July 29, 2020. The Forms I-129 and I-539 will not require additional information regarding receipt of public benefits, nor will the Form I-944 be required for Adjustment of Status petitions. In any public charge inadmissibility determination, USCIS will follow prior public charge guidance

• On July 24, 2020, the Student & Exchange Visitor Program (SEVP) posted a Broadcast Message on the Immigration & Immigration & Customs Enforcement website to clarify certain aspects of applying the March 2020 SEVP guidance in the context of Fall 2020 term. In addition, SEVP posted Clarifying FAQs for Fall 2020.

• With these announcements, SEVP stated the following: 

  1. Continuing Students: Students holding an active SEVIS record, including those who are outside the United States, are eligible to enroll in a fully remote course load for the Fall quarter, maintain their F-1 status, and seek re-entry into the U.S. In addition, they will be permitted to temporarily count online classes towards a full course of study in excess of the regulatory limits. 
  2. New Students: Admitted students, who are outside of the U.S., will likely not be able to obtain an F-1 visa or enter the United States to enroll in a U.S. school if they are taking a fully remote course load.

• U.S. Customs and Border Protection (CBP) extended once again the initial March 24, 2020 Federal Register announcements (Canada and Mexico) that temporarily only allow entry along the U.S.-Canada and U.S.-Mexico borders for "essential travel."
• Essential travel includes attendance at educational institutions and traveling to work in the U.S. but does not allow for tourism. U.S. citizens and permanent residents may return to the U.S. and persons may also travel for emergency response and public health purposes. See the CBP FAQ for more information; this current extension runs through August 20th, 2020.

• The U.S. Department of State announced on Thursday, July 16th a " National Interest Exception for Certain Travelers from the Schengen Area, United Kingdom, and Ireland" that allows students with valid F-1 visas to travel from these locations to the U.S. without seeking a national interest exception.
• Those students traveling on a J-1 visa should contact the nearest U.S. embassy or consulate to initiate an exception request prior to traveling.
• The announcement also mentions "academics" as qualifying for the exception, which may reference J-1 scholars, as suggested by individual posts' announcements (see 07/14/2020 U.S. Department of State Announces Phased Resumption of Visa Services in the list below). We encourage J-1 scholars to contact their nearest embassy or consulate for additional instructions or to request an exception prior to traveling. Additionally, no similar statement from U.S. Customs and Border Protection has yet been issued indicating that these travelers will be admitted to the U.S.

• On July 14, 2020, the July 6, 2020 SEVP Guidance for Fall 2020 was rescinded. At this time, ISPO is evaluating how the rescission may impact students in the Fall 2020 term and expect that there may be forthcoming guidance from SEVP. Please continue to check this FAQ page regularly as we receive further guidance from SEVP.
• Per the guidance that is now in place, current students in F-1 active status are eligible to retain an active SEVIS I-20 record if you meet the following conditions:
  • You are a current/continuing student in active F-1 status.
  • You expect to enroll in a minimum of 12 units (or have approved reduced course load (RCL) authorization ) for the Fall 2020 term.
  • You may enroll in any type of online, or hybrid, or on-campus courses in the Fall 2020 term.
  • You may be inside or outside the U.S. during the academic term.
• For more information, including information regarding enrollment, travel, employment and more, visit the Coronavirus Information for International Students FAQ pages .
• Please continue to check those pages regularly as we receive further guidance from SEVP.

• On July 14, 2020, the U.S. Department of State announced the phased resumption of routine visa services, to occur on a post-by-post basis as post-specific conditions permit. Visa applicants are instructed to review individual consulate websites for information regarding operating status.
• Note that the five geographic COVID-19 presidential proclamations (summarized in the latest: 10041 ) and two COVID-19 labor market proclamations supsending entry of certain nonimmigrants ( 10014 , 10052 ) remain in effect.
• According to several embassies in the Schengen area, however, Washington announced on July 10th that certain travelers from Schengen area countries could resume traveling to the U.S. if they qualify as a National Interest Exception (NIE), as determined by a Consular Officer, including those traveling as F-1 students and J-1 students/researchers. Posts announcing this policy include Bern , Bratislava , Ljubljana , Luxembourg, Reykjavik , and Vienna .
• We encourage you to contact your consulate regarding this policy and the procedure for boarding aircraft and subsequent admission to the U.S. at the port of entry in light of the current travel restrictions.
• Please bear in mind that the San Diego county health order will require a 14-day quarantine period upon arrival from any international location.

On Tuesday, July 14th the administration issued an executive order on "Hong Kong Normalization" that suspends or eliminates different and preferential treatment for Hong Kong as compared to China. This order will eliminate the "preference for Hong Kong passport holders as compared to PRC passport holders,"  revoke export licensing exceptions and suspensions (export control realm), and terminate the reciprocal Fulbright exchange program between the U.S. and China/Hong Kong.

• The July 7th guidance from SEVP addressed UC San Diego's ability to issue and ‘activate’ SEVIS records for newly admitted students in the Fall 2020 quarter if they are registered for in-person courses. UC San Diego’s Fall 2020 course offerings follow a ‘hybrid model’, a mixture of remote and in-person courses. 
  
  
• SEVP announced that it would no longer provide the same exemptions it allowed in the Spring and Summer for international students taking online classes due to the pandemic during the fall 2020 quarter. The guidance from SEVP addresses in-person, remote and hybrid enrollment in the Fall 2020 term and what actions students and institutions need to take to maintain F-1 records. ICE also indicated the rule will be published in the Federal Register as a Temporary Final Rule. 

• Continuing students with Active SEVIS records who enroll and remain enrolled in a minimum of one in-person course to meet the 12-unit full-time requirement will be eligible to remain in the U.S. or seek entry into the U.S. and be eligible for activation of their SEVIS record.
  
  
• Continuing students who are outside the U.S. may take a fully remote course load. Students who are only taking remote courses must remain outside the U.S. 

• Continuing students currently inside the U.S. must enroll in a minimum of one in-person or hybrid course to meet the 12-unit full-time requirement or must depart the U.S. or take other measures to maintain their non-immigrant status such as transferring to another school with in-person instruction to remain in lawful status in the U.S.
  
  
• Newly-Admitted students who are outside the U.S. and are unable to enroll in a minimum of one in-person or hybrid course will not be eligible to seek entry into the U.S. or be eligible for activation of their SEVIS record.
  
  
• Newly-Admitted students who are inside the U.S. and enroll and remain enrolled in a minimum of one in-person or hybrid course to meet the 12-unit full-time requirement will be eligible to remain in the U.S. and be eligible for activation of their SEVIS record.
  
  
• By August 4, 2020, ISPO must reissue new Form I-20s to all students enrolled in at least one in-person course with an updated SEVIS I-20 with a statement in the Form I-20 Remarks field that "the school is not operating entirely online, that the student is not taking an entirely online course load for the Fall 2020 quarter, and that the student is taking the minimum number of online classes required to make normal progress in their degree program." ISPO will be migrating to digital signatures so students can receive their updated documents in a timely manner. Additional information will be available in the next 1-2 weeks about this new document issuance process and for newly-admitted students who have not yet registered for FA20 courses.
  
  
• UC San Diego must update their operational plans with the Student & Exchange Visitor Program (SEVP): Schools that will be entirely online or will not reopen for Fall 2020 must notify SEVP no later than Wednesday, July 15, 2020. Schools that will offer an in-person or hybrid program for Fall 2020 must notify SEVP of their plans by August 1, 2020.
  
  
• If UC San Diego changes their operational plan to fully remote at any time for Fall 2020 term because of Center for Disease Control or San Diego County Public Health guidance, then students cannot take a full online course load and remain in the U.S.
  International students with Active SEVIS records who are in the U.S. will need to take alternative steps to maintain their non-immigrant status such as depart the U.S. or transfer to a school offering in-person instruction.

On Monday, June 22, President Trump issued a " Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak " that goes into effect on June 24 (12:01 am, EDT) and principally affects the H-1B and H-4 classifications. The J-1 classification's subcategories that were impacted are not typically seen on university campuses, and the F-1 OPT/STEM OPT category was not mentioned.

The proclamation limits the entry to the U.S. of individuals in H-1B status and their H-4 dependents who were outside of the U.S. as of the effective date of the proclamation AND who have no valid visa stamp as of the effective date (or other valid document, such as an advanced parole document). It is in effect through 12/31/2020 with the possibility of extension. Exceptions exist if deemed in the national interest as determined by the Departments of State/Homeland Security (such as national defense, medical care to hospitalized COVID patients, and COVID research).

If you are present inside the U.S. on June 24 or are outside the U.S. but have an H-1B visa stamp valid for June 24, then you will not be subject to the conditions imposed by this proclamation.

On Monday, June 15, 2020, the U.S. Department of Transportation modified the June 03 order limiting scheduled passenger operations of all Chinese air carriers to and from the United States.

The Chinese air carriers can continue to fly 4 weekly flights between China and the United States. See the modified order here.

On Friday May 29th, the administration issued a presidential proclamation suspending entry of "certain students and researchers from the People's Republic of China (PRC)." The proclamation applies to all F-1 and J-1 international students and researchers who are:

• Chinese nationals,  and
• Affiliated with any institution that "implements or supports" the PRC's " military-civil fusion strategy " (past or present affiliation), to include employment, study, conducting research, and/or receiving funding from these institutions.

Undergraduate students are excluded from this proclamation. Additional exclusions include:

• U.S. permanent residents or spouse/children of permanent residents
• "Any alien who is studying or conducting research in a field involving information that would not contribute to the PRC's military-civil fusion strategy"
• Law enforcement/national interest objectives

INTERPRETATION

The proclamation lacks clarity and suggests measures to be carried out in the future, both of which make it difficult to assess the impact on individuals at this time:

• The entities that implement or support the "military-civil fusion strategy" are not specified in the proclamation, nor in the Dept of State fact sheet referenced above; we do not know which entity affiliations may result in future visa denials.
• The proclamation gives discretion to the Department of State to revoke visas of F-1/J-1 graduate students/researchers currently in the U.S. The literal interpretation of "visa revocation" would be cancellation of the visa stamp in one's passport; such action would not negatively impact one's legal status while remaining inside the U.S., but upon exit, would prevent re-entry to the U.S. without a new visa stamp being issued.
• The proclamation gives discretion to the Departments of State and Homeland Security to "take action to further mitigate the risk posed by the PRC's acquisition of sensitive United States technologies and intellectual property" and requests that the Secretaries of these departments report to the President within 60 days of any planned and executed actions.

The International Students & Programs Office remains committed to supporting our student population during these challenging times. Please contact an International Student Advisor if you have any questions about how this may impact you directly.

• On May 24, The Administration updated the 04/22/2020 Presidential Proclamation imposing travel restrictions into the United States. It now suspends entry into the United States by certain non-U.S. citizens, who were physically present within Brazil during the 14-day period preceding their entry or attempted entry into the U.S.
• Impacted Countries: Brazil, China (excluding Hong Kong and Macau), Iran, Ireland, United Kingdom, and the Schengen Area of Europe (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland).
• Travel and Visa Restrictions for students in F-1 and J-1 non-immigrant status in effect until further notice:
  1. The May 24, 2020 Proclamation on Suspension of Entry ... of Persons Who Pose a Risk of Transmitting Novel Coronavirus mentioned above restricting travel to the U.S.
  2. The March 20, 2020 Suspension of U.S visa services at U.S. embassies and consulates around the world.

The Department of State advises U.S. citizens to avoid all international travel due to the global impact of COVID-19. In countries where commercial departure options remain available, U.S. citizens who live in the United States should arrange for immediate return to the United States, unless they are prepared to remain abroad for an indefinite period. U.S. citizens who live abroad should avoid all international travel.

Many countries are experiencing COVID-19 outbreaks and implementing travel restrictions and mandatory quarantines, closing borders, and prohibiting non-citizens from entry with little advance notice.

Airlines have cancelled many international flights and several cruise operators have suspended operations or cancelled trips. If you choose to travel internationally, your travel plans may be severely disrupted, and you may be forced to remain outside of the United States for an indefinite timeframe.”

On March 11th, President Trump expanded the current travel ban on CDC-designated level 3 Travel Health Notice countries (mainland China excluding Macao and Hong Kong and Iran) to include the following European countries:

• Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

On February 6, 2020, a federal district court issued a permanent nationwide injunction blocking the  August 8th, 2019 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. This forces the immigration service to apply prior policy guidance based on its unlawful presence memo issued on May 6, 2009, under which unlawful presence does not begin accruing until an immigration judge finds a status violation, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.

On February 2, 2020, the Presidential Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus went into effect, banning entry of immigrants and nonimmigrants who were physically present within the People's Republic of China (excluding Macau and Hong Kong) during the 14-day period preceding their entry or attempted entry into the U.S. Exceptions will be made for lawful permanent residents and family members of U.S. citizens or permanent residents. The ban is in effect until cancelled.

Guidance on travel restrictions to and from China are rapidly evolving. If you have any travel emergencies or questions about future travel plans, please contact ISPO for guidance.

On January 27, 2020, the U.S. Supreme Court lifted an October 11 2019 nationwide preliminary injunction that had prevented the administration from enforcing its public charge rule.  The U.S. Department of Homeland Security (DHS) is now permitted to implement and enforce its public charge rule while litigation continues in lower courts. For a short summary of this rule, see the 2019 posting in the archived drawer below.