ADEA Washington Update

Foreign Student Immigration Policy Challenges

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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.

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