IMMIGRATION POLICY UPDATES

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.

Newly published regulations redefine the terms and conditions of the public charge ground of inadmissibility established earlier by INA 212(a)(4).  Under the new rule, “public charge” includes having received one or more “public benefits” for more than 12 months in the aggregate within any 36-month period (note that receipt of two benefits in one month counts as two months).  “Public benefits” include:

1. Any federal, state, or local cash assistance for income maintenance (other than tax credits):
   1. Supplemental Security Income (SSI)
   2. Temporary Assistance for Needy Families (TANF)
   3. Federal, state, or local cash benefit programs for income maintenance
2. Supplemental Nutrition Assistance Program (SNAP; commonly known as “food stamps”)
3. Section 8 Housing Assistance/Rental Assistance
4. Medicaid (with some exceptions)
5. Public Housing under Section 9 of the U.S. Housing Act of 1937

Application: The new regulations are applied somewhat differently for Nonimmigrants applying for extension of stay (EOS) or change of status (COS) versus immigrants applying for Adjustment of Status (AOS):

Nonimmigrants Applying for EOS or COS:

DHS looks backward to see if “public charge” applies.  The benefit seeker must demonstrate they have not received public benefits for more than 12 months in the aggregate within any 36-month period. DHS will only consider public benefits received on or after October 15, 2019.

Applicants for Admission to the U.S. and Applicants for AOS:

DHS must consider a “totality of the circumstances” and make a prospective, forward-looking determination of whether someone is likely at any time in the future to become a public charge.  A public charge inadmissibility determination must at least entail consideration of the benefit seeker’s age, health, family status, education and skills, assets, resources, and financial status; a regulatory provision establishes a protocol for DHS officials to weigh each of these factors.

DHS is working with the U.S. Department of State (DOS) to ensure that the Foreign Affairs Manual, used by consular officials in the visa stamp application process, appropriately reflects the standards in this rule.  The new rule goes into effect October 15^th, 2019.

The International Faculty & Scholars Office and the International Students & Programs Office encourage students and scholars with any concerns about their personal circumstances vis-à-vis these new regulations to seek the advice of an experienced immigration lawyer for assistance and/or immigration strategy support/representation.

Read the Final Rule

On August 9^th, United States Citizenship and Immigration Services (USCIS) will change the way it determines accrual of unlawful presence in the United States for persons in F and J status.  Currently, unlawful presence accrues for F and J nonimmigrants who have been admitted with “Duration of Status” (“D/S”) only on the day after USCIS formally finds a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed.   Under the new policy, an F or J nonimmigrant will begin accruing unlawful presence on the earliest of any of the following:

• The day after the F or J nonimmigrant no longer pursues the course of study or authorized activity, or the day after they engage in an unauthorized activity
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period)
• The day after the Form I-94 expires (if admitted for a date certain rather than “D/S”)
• The day after an immigration judge orders the nonimmigrant excluded, deported, or removed

Any F and J nonimmigrants who have failed to maintain status prior to August 9^th will start accruing unlawful presence on August 9^th.   Note that there are some exceptions, such as those for students or exchange visitors whose reinstatement applications have been approved.  We encourage you to review the policy change carefully.

Accrual of Unlawful Presence has significant negative ramifications for future immigration benefits, including three-year, ten-year, and permanent bars to admission to the U.S., depending upon the amount of unlawful presence accrued.  It is extremely important for F-1 students, J-1 exchange visitors, and F-2 and J-2 dependents to pay very careful attention to following all rules and regulations with regard to their nonimmigrant classifications, so that they do not unknowingly fall out of status and begin accruing unlawful presence. The International Students & Programs Office (ISPO) and the International Faculty & Scholars Office (IFSO) remain committed to supporting our students and scholars in their study and research programs at UC San Diego and are available for individual advising to discuss any concerns this or other new policies may create. 

On June 26, 2018, the U.S. Supreme Court upheld Presidential Proclamation 9645 (Travel Ban 3.0)

The Presidential Proclamation 9645 (Travel Ban 3.0) which limits entry to the United States by certain citizens of seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen remains in effect indefinitely.

UC San Diego International Students & Programs Office continues to recommend minimizing international travel due to the changing nature of the current administration’s policies on visa and entry into the United States.

On October 17^th, 2017 the U.S. District Court for the District of Hawaii issued a Temporary Restraining Order prohibiting enforcement of Sections 2(a), (b), (c), (e), (g) and (h) of the Presidential Proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” issued on September 24^th, 2017. Visa applicants who are nationals of Chad, Iran, Libya, Syria, Yemen and Somalia are no longer subject to any of the restrictions or limitations under the Presidential Proclamation. However, the court order did not affect Sections (d) and (f) of the Proclamation, so nationals from North Korea and Venezuela are subject to the restrictions and limitations listed in the Presidential Proclamation, which went into effect at 12:01 a.m. EDT on Wednesday, October 18^th, 2017. For more information, visit the Department of State announcement.

The Temporary Restraining Order will likely face challenges from the U.S. Government, and the situation remains fluid. UC San Diego’s International Students & Programs Office and International Faculty & Scholars Office continue to recommend minimizing international travel due to the changing nature of the new administration’s policies on visas and U.S. entry.

On October 9, 2017, the U.S. Ambassador announced the suspension of nonimmigrant visa services at U.S. consulates in Turkey.  This suspension of services is not a “visa ban” on Turkish citizens, but rather a suspension of consideration of new visa applications.  Turkish citizens with valid U.S. visa stamps may still travel to the USA, and Turkish citizens may still apply for U.S. visa stamps at other embassies/consulates outside of Turkey.  Additionally, immigrant visas are still being processed.  For more information, read the Ambassador’s statement. 

If you have pending travel to Turkey, please be aware of the negative impact that this suspension of services may have on your plans. For more information, please contact the International Students & Programs Office via our Contact Us eForm.

On September 24^th, 2017, President Trump issued a new  proclamation “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” related to the earlier “Protecting the nation from foreign terrorist entry into the United States” Executive Order (March 6th, 2017).  The new proclamation restricts entry to the U.S. for nationals of eight countries.  The restrictions are country-specific and tailored to the situation of each individual country.  For additional information from government agencies, please see the U.S. Department of Homeland Security Fact Sheet and the U.S. Department of State Travel Alert.

Below is a summary of the new proclamation and its effect on individuals from the designated countries.  This information and hyperlinks to all pertinent Executive Orders are posted on the websites of the International Students & Programs and International Faculty & Scholars Offices.  Our offices remain committed to providing support to our international student and scholar population; please continue to check our websites for updates on immigration information as new rulings are issued.

AFFECTED COUNTRIES

Chad, Libya, Yemen:

Entry as an immigrant and as a nonimmigrant on B-1/B-2 visas is suspended; entry under other nonimmigrant visas is not suspended.

Iran:

Entry under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals will be subject to enhanced screening and vetting requirements.  Entry as an immigrant and under all other nonimmigrant visas is suspended.

North Korea, Syria:

Entry as immigrant or nonimmigrant, all classifications, is suspended.

Venezuela:

Entry under B-1/B-2 visas is suspended only for officials of certain government agencies; read full text of proclamation for details.

Somalia:

Entry as an immigrant is suspended; visa adjudications for nonimmigrant entry will be subject to additional scrutiny.

Note: While Iraq is not on this list, U.S. Department of Homeland Security recommended additional scrutiny for nationals of Iraq to determine if they pose a national security risk.

EFFECTIVE DATES:

There are two effective date phases: September 24, 2017 3:30 pm EDT, and October 18, 2017 12:01 am EDT.  The 9/24/2017 effective date applies to nationals of Iran, Libya, Syria, Yemen, and Somalia who were subject to the 90-day entry ban of the March 6^th Executive Order who “lack credible claim of a bona fide relationship with a person or entity in the United States.”  The 10/18/2017 effective date applies to all nationals of Chad, North Korea, and Venezuela, and to nationals of Iran, Libya, Syria, Yemen, and Somalia “who have a creditable claim of a bona fide relationship with a person or entity in the United States.”  An example of a “bona fide relationship” might be an employment contract with U.S. employer or letter of admission to a U.S. institution’s degree program.

EXEMPTION:

Individuals inside the U.S. as of the applicable effective date or who have a valid U.S. visa on the applicable effective date.

EXCEPTIONS:

• Any lawful permanent resident of the U.S.
• Any foreign national admitted to or paroled into the U.S. on or after the applicable effective date
• Any foreign national who has a document other than a visa, valid on the applicable effective date or issued thereafter, allowing travel to the U.S. and admission, such as advance parole
• Any dual national of a country designated under the order when traveling on a passport issued by a non-designated country

WAIVER:

Granted on a case-by-case basis, based on demonstration of (see full text of proclamation for examples):

• Denying entry would cause undue hardship
• Entry would not pose threat to national security
• Entry would be in the national interest

REFUGEES/ASYLEES:

This proclamation does not apply to individuals granted asylum by the U.S. or refugees who have already been admitted to the U.S., and does not limit the ability of an individual to seek asylum or refugee status and protection under the Convention Against Torture.

UPDATE 4/19/2017 - NEW EXECUTIVE ORDER "BUY AMERICAN AND HIRE AMERICAN" ISSUED 4/18/2017

On April 18th, 2017 President Trump signed a new Executive Order titled "Buy American and Hire American." With specific regard to immigration ("hire American"), the order calls for:

• The strict enforcement of all laws governing entry into the U.S. of workers from abroad in order to create higher wages and employment rates for U.S. workers
• The U.S. Departments of State, Justice, Labor, and Homeland Security to take prompt action in proposing new rules or issuing new guidance to protect the interests of U.S. workers in the administration of the U.S. immigration system, including through the prevention of fraud or abuse
• The U.S. Departments of State, Justice, Labor, and Homeland Security to take prompt action in suggesting reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries

The text of the first bullet point references specifically section 212(a)(5) of the Immigration and Nationality Act, pertaining to "Labor certification and qualifications for certain immigrants"

In meeting the second bullet point's requirement, the listed federal agencies can propose new rules, which typically will require considerable time for writing, publication in the Federal Register for public review and comment, rewriting with consideration given to public input, and final publication in the Federal Register with an effective date in the future. Federal agencies can issue guidance at any point, which can go into effect immediately.  Both rulemaking and guidance must remain consistent with applicable laws as passed by the legislative branch of the government.

Reforms to "promote the proper functioning of the H-1B program" suggested by federal agencies can take many pathways, from administrative procedures within an agency (implemented relatively quickly, such as increasing fees, revising prevailing wage scales, or increased enforcement efforts against perceived H-1B program violators)  to making suggestions for legislative actions, which would take considerable time ultimately to go into effect.