RECENT IMMIGRATION POLICY UPDATES

• On 12/31/2020 the President extended his earlier Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the U.S. Labor Market...), which prohibits the issuance of immigrant and certain nonimmigrant (including H-1B) visa stamps to those outside of the U.S. and without valid visa stamps in the affected classifications as of the effective date of the initial proclamation.
• The current extension runs through 3/31/2021; read the full text of the proclamation.
• This only affects persons currently outside of the U.S. without valid H-1B visa stamps; departments can still sponsor persons for H-1B status who are currently inside the U.S. or had valid H-1B visa stamps as of June 24, 2020.

• On December 29, 2020, the Department of State extended until March 31, 2021 the temporary expansion of statutory and regulatory provisions that allow consular officers to waive the in-person interview requirement for individuals applying to renew a visa in the same nonimmigrant visa classification and category if not more 24 months have passed since the prior visa expired. See DOS site for additional details .

• On December 9, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it will extend Temporary Protected Status (TPS) and the validity of certain TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan, provided that the beneficiaries remain eligible for TPS through October 4, 2021.
• These documents include: Form I-766, Employment Authorization Documents (EADS); Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record.
• Beneficiaries of this TPS designation may also apply for new EADs if they wish.
• See the USCIS website for additional details.
• Visit United States Citizenship and Immigration Services (USCIS) website for more information about TPS.
• ISPO recommends consulting with an experienced immigration attorney when applying for or extending TPS. See ISPO’s Legal Resources page for guidance in finding an immigration attorney.

• On December 1, 2020, a U.S. District Court ruling blocked both recent interim final rules of the Department of Labor ("Strengthening Wage Protections...") and the Department of Homeland Security ("Strengthening the H-1B Nonimmigrant Visa Classification"), stating the agencies did not have just cause to promulgate the rules without notice and comment.
• The DOL rule, which was effective immediately upon publication, can no longer be enforced, and the DHS rule, with effective date of Dec 7th, can no longer be implemented. The federal agencies have the option to appeal or republish these rules with comment periods, but there is not much time left for the current administration to pursue these options.

• On November 30, 2020, the Washington D.C. federal court hearing the Washtech v. Department of Homeland Security (DHS) case ended, at least for now, the challenge against Optional Practical Training (OPT). While this judgment cannot be considered final, it is another good legal decision in support of the OPT program. Refer to this Forbes story for more context.

• On Wednesday, October 28 the U.S. Department of Homeland Security announced a proposed rulemaking to amend regulations governing the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for filing of cap-subject petitions.
• Currently, USCIS uses a lottery to select the 85,000 H-1B petitions it is allowed by statute to process each year (the "cap"); if this rule is finalized, H-1B cap-subject petition selections would be based on the highest prevailing wage level that the offered salary equals or exceeds for the occupational classification and area of intended employment, rather than a random selection process.
• This rulemaking will not directly impact cap-exempt higher education institutions in their filings of H-1B petitions but could impact those persons seeking H-1B employment in cap-subject private industry.

• On October 7, 2020, the U.S. Departments of Labor (DOL) and Homeland Security (DHS) issued interim final rules (DOL and DHS) regarding the H-1B classification, and on Oct. 8th DOL made public the new prevailing wage rates in it OES database, which are considerably higher than previous wage rates. The DOL rulemaking focused on prevailing wage rates, and the DHS rulemaking focused on tightening regulatory definitions and procedures. While these are interim final rules with a 30-day public comment period, the DOL rule is effective immediately, and the DHS rule effective 12/7/2020.
• The new prevailing wage rates do not apply retroactively to already approved H-1B petitions and Labor Condition Applications (LCAs) supporting them; only those LCAs and H-1B petitions moving forward. Also, salary scales based on collective bargaining agreements take precedence over published prevailing wage rates in OES. If a department is sponsoring a non-represented employee for a new or extension H-1B petition, we strongly encourage you to reach out to your IFSO immigration advisor who will be handling the case for an in-house prevailing wage rate determination prior to making an offer.
• The DHS regulations will limit H-1B approval periods to one-year only for workers placed at worksites not owned/leased/operated by the employer.
• The International Faculty & Scholars Office (IFSO) and the International Students & Programs Office (ISPO) are working with its UC Federal Government Relations colleagues and NAFSA: Association of International Educators to report the challenges UC San Diego faces with this new ruling and will be exploring what alternatives to the OES database may exist for problematic wage rate determinations.

On September 29, 2020, the U.S. District court for Northern California issued a nationwide preliminary injunction and stay on implementation of the 2020 final USCIS fee rule in its entirety. New fees and forms associated with implementation of the rule on October 2, 2020, are now put on hold, as are other aspects of the rule, including the Premium Processing time change from 15 calendar days to 15 business days. Current fees and forms should continue to be used pending final adjudication of the matter.

• On September 25, 2020, the Department of Homeland Security (DHS) released a Proposed New Rule to eliminate the current duration of status (D/S) policy for international students in F-1 and J-1 status and international researchers and scholars in J-1 status and replacing the policy with a set expiration date for authorized stay.
  Under the current D/S policy, students and researchers have the flexibility to make approved changes to their plan without having to depart the United States or undertake a long and complicated government process to extend their status. If approved, key changes to the policy may include:
  • Limiting the period of authorized stay for F or J status (students, researchers, scholars and their dependents) to 2 to 4 years.
  • Reducing the F-1 grace period allowed to remain in the U.S. after completing a program of study from 60 to 30 days.
• Please keep in mind that this is still a proposed rule. It is not in effect at this time. ISPO is strongly opposed to these changes. We are monitoring the situation and working with UC-wide advocacy efforts.
• We will send updates via the iStudents listserv when new information becomes available.

The 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. If you have any questions or concerns about immediate or essential international travel or visa renewal, please meet with an ISPO advisor.

Also, refer to the NAFSA: Association of International Educators Executive Order Resources and Travel Advisory web pages.

UC San Diego welcomes applicants from the around the world. Applicants are evaluated based on their academic preparation and qualifications. For more information about the undergraduate and graduate student application process, visit:

• Graduate Admissions FAQ
• Undergraduate Admission Review Process

At any time, it is important to avoid any violations of your F-1 or J-1 status. In addition to enrollment requirements, address reporting, or employment restrictions, individuals in non-immigrant status are expected to refrain from breaking any U.S. state or federal laws.

What Rights Do I Have While in the U.S.?

U.S. constitutional law is complex however regardless of your immigration status, noncitizens generally have equal First Amendment rights under the U.S. Constitution*: 

• Freedom of speech, freedom of expression and peaceful assembly, and freedom of religion 
• Freedom from illegal search and seizure (a law enforcement official must have a subpoena or warrant), unless a crime has been committed where the search would take place 
• Permission to remain silent (and not say anything that could be used against you)
• Guarantee of “due process” and “equal protection under the law”, which means that you have the right to an attorney, and a right to have a hearing before a judge in most cases
• Right to contact your country’s Consulate

*Learn Liberty: The Constitutional Rights of Noncitizens and 2003: Cole, David: Georgetown Law, "Are Foreign Nationals Entitled to the Same Consitutional Rights as Citizens?"

Participating in Protests:

ISPO understands that choosing to protest is a very personal decision. Think carefully before engaging in protest activities as the potential to encounter or be approached by law enforcement is higher. If you choose to engage in protest activities, review the Amnesty International "Safety During Protest" information, the ACLU "Protesters' Rights" -  and print and carry the "Know Your Rights" card. 

What if I am Approached by U.S. Law Enforcement?

Review the following resources from the American Civil Liberties Union (ACLU) and the American Immigration Lawyer's Association (AILA). 

• Know Your Rights Handouts: If ICE visits home, employment or public space
• If questioned about your immigration status
• What to do if ICE is at your door
• If you’re stopped by police, Immigration agents or the FBI
• Rights at airports and other ports
• What to do if border agents demand I turn over my cell phone or laptop

Arrests and Convictions:

Finally, understand that arrests can seriously impact immigration status or future visa applications. 

Arrests or convictions that involve violence, drugs or alcohol can have serious or long-lasting impact on current or future immigration status. Be aware that while marijuana use is legal in many U.S. states, it remains illegal at the federal level and use constitutes a violation of federal law. Use of marijuana, or alcohol/drug-related DUI arrests or convictions can lead to severe immigration consequences ranging from fines, visa cancellation to deportation.

If you are arrested or have any legal concerns, please contact ISPO immediately. In such cases, we urge you to retain immigration legal counsel and criminal legal counsel to advise you as to next steps and possible consequences.

If you need additional time to complete your program of study at UC San Diego, you will need to identify an academic or medical reason for the extension.

• Undergraduate Students: Please meet with your College advisor regarding questions about general requirements. Meet with your department advisor regarding questions about major/minor requirements.
• Graduate Students: Please meet with your Faculty Advisor and Graduate Coordinator regarding questions about time limits, available funding, and reasons impacting your expected completion date.

Some individuals may be contacted by government officers or representatives to meet in a public location so they can discuss your current immigration status. In general, this does not have a negative impact on your status. ISPO and IFSO are available to hold the meeting in their offices or accompany you during the meeting with government officers or representatives. Please meet with an ISPO or IFSO advisor if you have any questions or concerns about these inquiries.

Additional tips for interacting with US law enforcement and understanding your rights is available with the American Civil Liberties Union:

• If questioned about your immigration status
• What to do if ICE is at your door
• If you’re stopped by police, Immigration agents or the FBI
• Rights at airports and other ports
• What to do if border agents demand I turn over my cell phone or laptop

ISPO and IFSO advocates for our international students and scholars on a campus and community level by continuing to provide education, training, and advising for campus partners and stakeholders regarding the complex issues facing our student and scholar population.

ISPO and IFSO also work in partnership with the campus administration and the University of California's Office of Federal Governmental Relations to advocate for regulations and policies supportive of our international community. Additionally, ISPO and IFSO work for advocacy through our membership in NAFSA: Association of International Educators, the world's largest nonprofit association dedicated to international education and exchange.

Additional Campus Resources

Enrolled UC San Diego students can access resources through Counseling and Psychological Services, including individual confidential counseling appointments, groups, self-help tools, and more. UC San Diego employees and Visiting Scholars or postdocs can find support through the Faculty & Staff Assistance Program which provides free, confidential counseling and referrals.

• Tips on How to Cope with Stress

It is important to review your documents for accuracy and be aware of expiration dates.

• Make sure the spelling of your first and last name match on your passport, visa, and I-20/DS-2019.
• Check your passport expiration date. Make sure it is valid during your stay in the U.S. Apply for a new passport with your embassy or consulate when needed.
• Check your visa expiration date. Make sure that your visa is valid before reentering the U.S. If it is expired, you will need to apply for a new visa. Remember: A visa is an entry permit into the U.S. It does not determine whether you can stay or work.
• Print your current I-94 from the Customs & Border Protection website.
• Make sure the major/field of study on your I-20/DS-2019 reflects your current information. If it is different, request a new I-20/DS-2019 as soon as possible.
• Make sure the program end date on your I-20/DS-2019 has not expired. Request an I-20/DS-2019 extension at least 2-3 weeks before the expiration date.
• Update/enter your local address, phone number, email address, and emergency contact information.
  • Students: Update your record via TritonLink.
  • Faculty & Researchers: Notify IFSO.
  • Individuals on OPT/STEM OPT/Academic Training should submit their employment verification, local address, phone number, and email address via the Employment Verification Form 

• Gather as many facts about the situation as possible, within the scope of your authority as an employee of your institution.
• Identify what you might be able to do within the scope of your role at your institution, and refer individuals with issues, questions, or concerns that are beyond the scope of your role or ability to appropriate helpers.
• Consult with an advisor in the International Students & Programs Office regarding international student issues and an advisor in the International Faculty & Scholar Office regarding international faculty and researcher issues.
• Remember that you cannot dispense legal advice. Know when to encourage someone to seek legal advice from an experienced attorney.
• Notify stakeholders on your campus about the situation, through your normal supervisory chain

• ISPO Advisors for students: Walk-In Advising on Monday, Wednesday, Thursday, and Friday from 9am-12pm & 1:00-4:00pm. Contact icontact.ucsd.edu or 858-534-3730.
• IFSO Advisors for faculty and researchers: Monday-Friday from 9am-4pm. Contact ischolars@ucsd.edu or 858-822-246-1448 to schedule an appointment.