Immigration In Troubled Times: What You Need

to KnowSACRAO 2009

David A. M. WareDavid Ware and Associates

Attorneys at lawdware@david-ware.com

800 537 0179www.david-ware.com

Student/EV News• OPT Changes: 4/8/08 Rule (73 Fed. Reg.68, 18944-

18956)– Creates 150 day application window: 90 days before

completion, up to 60 after completion of course of study.– Extends OPT until October 1 of same year, if student’s

OPT ends on or after April 1, and student’s H1B petition is “selected” for adjudication in lottery. SEVP guidance also provides for mini extensions until notification of “selection.”

– Allows 17 month extension for those earning degrees in Science, Technology, Engineering and Math. Ice.gov/sevis/stemlist.htm. Must apply during initial 12 months of OPT; employer must enroll in E Verify. See dhs.gov/ximgtn/programs/gc_1185221678150.shtm. Automatic extension of 180 days if timely filed.

OPT Changes– Establishes maximum cumulative unemployment

period of 90 days during initial 12 months; 120 days during 29 months if STEM extension granted.

• But SEVP guidance allows self employment, contract or agency work, short gigs, and volunteer work during first 12 months. Must be at least 20/hrs per week.

– Up to 10 day period between jobs does not count towards limit.

– Time outside US does not count if authorized leave or working for employer abroad.

– Only unemployment after April 8, 2008 counts towards limit.

– SEVP will enforce by denying future benefits, terminating record in individual cases.

– See, Ice.gov/sevis/updates_postcompletion_opt.htm

OPT Changes• Reporting: New rule establishes triple reporting

requirements:– Student to DSO:

• initial 12 months: should report any change of address, name, interruption of employment, to DSO [within 10 days--SEVP];

• STEM extension: must provide within 10 days change of legal name, address, employer name or address, and loss of employment; also “validation report” each six months if on STEM extension [not in SEVIS 5.8]

– Employer to DSO: (STEM ext. only) must report if student separated from employment within 48 hours

– DSO to SEVIS: – Initial 12 months: must report in SEVIS within 21 days:

any change of name, residential or mailing address, – Also during STEM extension: change of employer name

or address, end date of employment, as reported by student/employer [ 8 CFR 214.3(g)(3)(i)].

OPT Changes

• Excellent NAFSA analysis of new rule:– Nafsa.org/regulatory_information.sec/

regulatory_document_library.dlib/sevis/opt_29_month

– Major questions:• Terminate record if student OOS due to

unemployment? No.• What will CIS/CBP/SEVP do about student who is

OOS? Terminate record, deny benefits?• Mitigating factors re unemployment? Illness, jail?• Affirmative contact with student necessary?

(No--except informing them of responsibilities when applying)

New Fee Schedule—10/27/08

• I 901 F/M visa applicants $200• I 901 J visa applicants $180• I 901 J au pair, camp counselor,

summer work/travel $35• I 901 J govt sponsored $0• I 17 Initial SEVP cert $1700 plus

$655 site visit• I 17 Change of ownership $1700 • Site visit if adding campus $655• Recertification $0

Student/EV News

• In March of last year, DOS issued its annual F, J, and M update:– Prioritize F, J, M applications– Attendance at community college, language

program, lesser known school not per se reason to refuse visa

– Whether course of study offered in home country not cause to refuse visa

– SEVIS is final record regarding whether student/EV accepted into program and document properly issued

– CCD now permits viewing SEVIS comments section

Student/EV News

• SEVP 5.8 Launched on April 18, incorporating functionalities related to the new OPT rule.

• SEVP slides on the launch can be found at ice.gov/sevis

Student/EV News

• DOS has created new Student/EV Visa Center for inquiries on F, M, J visa applications– Schools and EV sponsors can email

fmjvisas@state.gov– Foreign national applicants should call

202 663 1225

Student/EV News/Inquiries

• Inquiries must include date, nature (eg, delay, denial, etc) and:

• Post information– Consular post involved– Have you contacted post directly?– When?– How?– Name of person contacted, if known– Attach correspondence, if any

Student/EV News/Inquiries• Inquiries should include:

– Foreign National’s information• Full Name as in passport• Nationality• Place of Birth• Date of Birth• Current visa status if in US• Type of visa applied for• NIV appointment number

– DSO/RO contact info• Name, institution, phone, email

• See http://www.nafsa.org/regulatory_information.sec/state_department_student_exchange

General News

• Interfiling: In a recent liaison meeting between AILA and USCIS Service Center Operations, the latter suggested that the best way to “interfile”, that is, file a document or other information in a case that is already pending, is to attach a brightly colored sheet to the packet, clearly indicate that you are interfiling, and note the previous receipt number on the cover sheet.

General News--TPS

• Burundi: terminated 5/2/09• El Salvador: extended til 7/5/10• Honduras: extended til 7/5/10• Nicaragua: extended til 7/5/10• Somalia: extended til 9/17/09• Sudan: extended til 5/2/10• Liberia: deferred enforced departure

til 3/31/09

General News

• New I 765, revision date, 4/8/08, must be utilized as of May 8, 2008.

• Incorporates changes as a result of new OPT rule of April 8:– Three OPT codes instead of one: pre completion;

post completion and STEM extension– If STEM chosen, requests information about

major and employer’s E Verify registration number. Student must also submit copy of degree reflecting STEM major (if diploma silent, submit transcripts)

General News—E Verify

• Launched in 2007• Supplementary to I 9 Employment

Eligibility Verification• System compares employee’s SSN and

other personal data to information in SSA and DHS databases. Does not verify immigration status.

• Still voluntary for most employers; however, federal contractors now required to enroll; several states require enrollment, eg, MS.

General News-- E Verify

• Within three days of hire, employer must submit employee’s information. System responds:– Employment authorized– SSA tentative non confirmation– DHS verification in progress

• If tentative non confirmation received, employee, must be given eight federal business days to resolve with agency.

General News –E Verify

• E Verify has bugs; up to 10% of its responses may be erroneous.

• Employer must sign Memorandum of Understanding allowing DHS and SSA to inspect its E Verify records periodically.

Visa Processing Update

• Paperless consulates: DOS moving to entirely electronic visa applications using new Form DS 160. Program is being piloted at Nuevo Laredo, Monterrey, Vancouver, Montreal, Hong Kong.

• Both Hands Now: as of 8/20/08 a ten print scan is required of all non immigrant visa applicants.

Visa Processing Update• Changes to VWP Program:

– 11/17/08: Expanded to include Czech Republic, Estonia, Hungary, Latvia, Lithuania, S. Korea, and Slovakia.

– 1026/08: Must have machine readable PP issued by a VWP country to use VWP; those who don’t must get visa.

– 1/12/09: All VWP travelers must register in Electronic System for Travel Authorization (ESTA) prior to coming to US. See www.cbp.gov/xp/cgov/travel/id_visa/esta/

• Note that VWP entrants are unable to change status, generally unable to extend stay, and must go home to get a visa.

VP: New TCN Rule in Mexico

• On about November 1, the 10 US consulates comprising “Mission Mexico” instituted new policies with regard to third country nationals (TCN’s) applying for non immigrant visas in Mexico.

• TCN’s who qualify under the new policy can apply for a visa at any of the 10 posts throughout the country—Tijuana, Guadalajara, Nogales, Monterrey, Hermosillo, Mexico City, Nuevo Laredo, Matamoros, and Merida.

Visa Processing: TCN Rule• Who is eligible: Persons renewing a visa in the

same category where the original visa was obtained in the home country, country of residence, or at a Mexican border post. This does not apply to B 1/B 2 tourists/business visitors.

• Who is ineligible:– out of status or overstay– VWP entrants– undocumented– persons seeking a visa in a different category from

their previous visa(s) [new]– Persons applying for a B 1/B 2

Visa Processing: TCN Rule

• Ineligible classes:– Persons seeking a visa in same category

as previous visa, but that visa obtained outside home country or country of residence (except that visa obtained at a Mexican border post is ok)

– Persons subject to NSEERS– Persons holding travel docs from Syria,

Sudan, N. Korea, Cuba, or Iran

Visa Processing News

• Drunks, Druggies, etc: Don’t forget that arrests or convictions for DUI, or any admission of drug use, can result in referral to DHS panel physician and refusal of visa. Also, any arrest or conviction, even if very minor, will result in delay of visa issuance, while DOS confirms criminal record and outcome with FBI.

The Undocumented

WHO ARE THE UNDOCUMENTED?

Entered without inspection (EWI) or by fraud. Entered legally but status has expired – see I-94. Entered legally and have facially valid status but have

not complied with conditions of admission. Estimated number: 8 to 11 million Most EWI’s are Mexican, but increasing numbers are

Brazilian, Central American, Asian. Undocumented do not rely on government services,

except emergency medical care, and certain public health programs.

Undocumented generally only accept work US workers will not perform.

CONSEQUENCES OF BEING UNDOCUMENTEDCONSEQUENCES OF BEING UNDOCUMENTED

Not eligible for COS or EOS Deportable Not eligible for F, M, J or other nonimmigrant benefits * OPT * Transfer * On- or off-campus work authorization * Endorsement of I-20 for travel Generally not able to get SSN or Drivers License Subject to 3 or 10 year bar if leave US, unless D/S and no formal finding of OOS. Does SEVIS termination change that?

Consequences…

• Immigration and Customs Enforcement has identified three priority enforcement categories:

• Persons with final orders of removal• Convicted criminals• SEVIS violators

CAN ‘T THEY JUST “GET LEGAL?”CAN ‘T THEY JUST “GET LEGAL?”

1996 restrictions on cancellation of removal 1996 restrictions on dependency on juvenile court Expired I-94 –automatic visa cancellation – must

return home for visa; does not apply to those who are D/S and OOS;

Unlawful presence -- 3 or 10 year bar 245(i) expiration 4/30/01• F reinstatement regulations -- usually not granted if

OOS more than five mos. J reg similar. OOS and reentry: POE’s have SEVIS termination

data; may have to pay SEVIS fee.

Difference between “Out of Status” and “Unlawful Presence”Difference between “Out of Status” and “Unlawful Presence”

• Unlawful presence – generally any period following expiration of I-94 or finding by Immigration Judge or INS that person not maintaining status. Exceptions: asylum applicants; those under 17; battered spouses/children; TPS; VD; Canadians with no I-94; timely filed EOS or COS; AOS.

• Out of Status – violation of conditions of admission. For F or J student:

no show drop out improper transfer expired passport

unauthorized employment expired I-20/DS 2019 below full load w/o DSO/RO permission conviction of serious crime

D/S who is OOS does not accrue unlawful presence until IJ or DHS finding of OOS.

If unlawful presence, can a visa be issued?If unlawful presence, can a visa be issued? More than 6 mos/less than 1 year -- 3 year bar 1 year or more – 10 year bar ANY unlawful presence may indicate lack of NIV intent Section 212(d)(3) waiver unlikely, but possible

If D/S and OOS, or OOS but I-94 has not expired, If D/S and OOS, or OOS but I-94 has not expired, can a visa be issued?can a visa be issued?

Yes, but negative factor

Depends on length, severity and circumstances within/beyond student’s control

Negative factors compounded by bad conditions in home country, insufficient ties

THE BOTTOM LINE:

NEVER ISSUE AN I-20 OR DS-2019, AND ADVISE AN UNDOCUMENTED PERSON TO LEAVE THE COUNTRY TO OBTAIN A VISA OR “REINSTATE,” WITHOUT CAREFULLY EXAMINING ALL ISSUES RELATING TO STATUS AND/OR UNLAWFUL PRESENCE, AND REFERRING THE PERSON TO AN ATTORNEY IF NECESSARY.

Can I Admit The Undocumented?Can I Admit The Undocumented?

Yes!

Despite changes in F, M and J law and regulations, neither DHS nor Congress has taken steps to restrict admission of the undocumented to higher education.

Legacy INS believed it needed Congressional authorization to do this.

Official Legacy INS Statement re: EnrollmentOfficial Legacy INS Statement re: Enrollment

“Congress has not adopted legislation which would permit states and state-owned institutions to refuse admission to undocumented aliens or to disclose their records to the Immigration and Naturalization Service (INS). In addition, aliens who are in proceedings or whose applications for reinstatement to or extension of student status are pending may enroll full-time pending resolution of their immigration status.”

INS Memo dated 01/14/94, published in Interpreter Releases 3/14/94, page 366.

Does any Law Require Me to Admit Them?Does any Law Require Me to Admit Them?

Probably not, though somewhat a gray area:

LULAC v. Wilson

1 – Supremacy Clause – defeated CA Proposition 187.

US Constitution Supremacy Clause, Equal Protection Clause.

Title VI of Civil Rights Act of 1964 – national origin discrimination: but if all treated

equally?

State human rights laws.

No state, except VA, has a law or rule prohibiting their enrollment.

DHS does not prohibit nor discourage enrollment.

199 F Supp. 1244 (C. D. Cal., November 14, 1997)

What do other schools/states do?What do other schools/states do?

Most admit the undocumented, but policies vary widely. Many “policies” are not in writing, not supported by opinion from legal counsel. UGA System one of best (adopted 9/25/00).

Most schools do not have a written policy, and will admit.

Some schools do not have a written policy, but a “tradition” of not admitting, but could provide no legal reason for doing so.

A few religious schools responded, “It is against our moral code to admit the undocumented.”

New Policy In Alabama

• Adopted September 2008 by Board of AL Community College System

• Affects all students admitted after 9/25/08• Affects community college students only• Does not mention undocumented

specifically• Requires presentation of certain documents

in order to gain admission• Most of these, eg, AL driver’s license, are

unavailable to the undocumented.

For Those Who Wear Many Hats

• Don’t forget to advise students about H1B filing deadline of April 1. Exempt from quota:– Previously counted in last six years– Employer is non profit affiliated with

higher ed (may often include K 12 schools, state agencies)

– Employer is govt or non profit research org

– Employer is higher education institution (except vocational schools)

Many Hats

• Don’t forget to advise about Diversity Visa Lottery, usually October to December each year. Warn students about “services” which claim to increase chances of winning; some are fake, none can increase chances

• ONLY website for lottery: www.travel.state.gov

What the Economic Crisis Means for Intl Ed

• Decreased state tax revenues/budgets• Fewer resources to attract students• Fewer resources for exchange

programs• All countries affected to greater or

lesser degree: fewer international students/exchange visitors

• Will stimulus help? Perhaps in limited ways with some research programs; hard to say until we have a bill.

Legislative Update

• Despite Obama’s promises on the campaign trail and post election, the new Administration’s push for comprehensive immigration reform will probably be delayed this year as the economic picture worsens.

• It would be politically very difficult to talk about legalization, or increasing visa numbers for essential workers, when many Americans are losing their jobs.

• Expect small-bore improvements, such as the Dream Act, and bigger reforms in 2010 or 2011, depending on the economy.

QUESTIONS?

¿Preguntas? Fragen?

Perguntas?Domande?Questiós?Vragen?