The
Trump Administration recently made regulatory changes that affect foreign
students and entrepreneurs. Earlier this year,
U.S. Citizenship and Immigration Services (USCIS) made it more difficult for
certain international STEM students to obtain postgraduate temporary work
authorization, forcing employers to either prepare to shoulder additional legal
burdens on behalf of their foreign hires or look elsewhere to fill specialized
roles. USCIS made unannounced updates to its website indicating that its
interpretation of the 2016 rule for F-1 student visa holders had changed. The
implementation of the STEM policy changes sidestepped normal rulemaking
procedures under the Administrative Procedure Act, which requires the agency to
provide advance notice and an opportunity for the public to comment before
issuing a rule. After this was challenged in court, USCIS changed its website
and formally denied having changed the rules and requirements.
Another
new policy states a student can be found to be unlawfully present as soon as
they first violate their visa. What makes this policy revision so strict is the
timing when the alleged violation took place: a student is subject to “unlawful
presence” the day after their graduation, the day after their I-94 expires, or
the day after they no longer pursue the course of study or authorized activity.
H. Ronald
Klasko,
Managing Partner of Klasko Immigration Law Partners LLP, said his firm has compiled
examples of more than 50 student visa violations that are particularly
technical or are due to an error in a database, indicating that a student could
face serious consequences without clearly overstepping the terms of their visas
under the policy. The policy
would change what has been a USCIS interpretation of the law and regulations
for more than 20 years.