Immigration and Visa Policy Updates

Learn about Issues Regarding International Students at Graduate Management Programs

Thank you for your interest in the Council’s efforts concerning international student immigration and visa issues.

We continue to update this section of our website, so we encourage you to visit often.


U.S. Political Climate Impacting International Applications to MBA Programs: GMAC’s Points of View

Video from CNBC Nightly Business Report

 

Data Brief: International B-School Candidates Continue to Express Concerns About Studying in U.S. Amid Political Climate

Video: Are Foreign Students Avoiding U.S. MBA Programs?

U.S. Travel & Immigration Policy Updates

Webinars and Resources



Recent changes to U.S. immigration procedures, including a proposed temporary travel ban affecting seven countries have created a great deal of uncertainty for student candidates and business schools. We understand the immediacy and the complexity of the issues that schools are facing, and the importance of sharing information. Below you’ll find ongoing context and analysis on the impact these changes are having and may potentially have on the graduate management education community, including actions GMAC is taking on behalf of schools and candidates and available resources.

Please check back here often for updates. We welcome your comments at ceo@gmac.com.

U.S. Travel & Immigration Policy Updates – September 22, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

H-1B Premium Processing Restored for Additional H-1B Petitions

On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B visa petitions subject to the Fiscal Year (FY) 2018 cap, which is set at 65,000 visas. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside for those with a U.S. master’s degree or higher. The latter is known as the “advanced degree exemption” and it is applicable to international students graduating with a master’s degree from a graduate level U.S. business school. Also applicable to higher education, on July 24, 2017, USCIS resumed premium processing for certain cap-exempt H-1B petitions, including where the H-1B petitioner is an institution of higher education, a nonprofit related to or affiliated with an institution of higher education, or a nonprofit research or governmental research organization. Restoration of H-1B premium processing has been ongoing since USCIS issued a statement earlier this year that premium processing was temporarily suspended for all H-1B petitions.


U.S. Travel & Immigration Policy Updates – September 19, 2017

GMAC Joins ACE and Other Education Groups in Submitting Amicus Brief to U.S. Supreme Court

The Graduate Management Admission Council today joined the American Council on Education (ACE) and several other organizations in submitting an amicus brief to the U.S. Supreme Court, which details the impact the travel ban executive order is having on the education community’s ability to attract foreign students, scholars, lecturers, and researchers. An article about this submission is posted on the ACE website.


U.S. Travel & Immigration Policy Updates – September 13, 2017

GMAC Signs on to DACA Letter to Congress

The Graduate Management Admission Council has partnered with 75 leading higher education associations in the U.S. as a signatory to a letter sent on September 12, 2017, to all Members of Congress regarding DACA. We are urging Congress to swiftly pass legislation to protect dreamers. The full text of the letter to Capitol Hill can be found here.


U.S. Travel & Immigration Policy Updates – September 7, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Settlement Reached in the Travel Ban Case

Individuals, including international students, banned from entering the United States under the Trump Administration’s first travel ban can now reapply for visas to enter the U.S. in a settlement reached by the parties (Darweesh, et al., v. Donald Trump, et al., Civil Action No. 17-CV-480). At issue was the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). The settlement was entered September 1, 2017.  

Individuals who filed a visa application with the U.S. Department of State, applied for admission at a U.S. port of entry and were denied entry based on the Executive Order are covered under the settlement. Individuals who were kept from boarding flights and therefore did not apply for admission to the United States at a port of entry are not covered under by the settlement.

The settlement requires that the U.S. government transmit a letter to each individual denied entry due to the Executive Order as well as consider their applications for a visa and future admission to the U.S. The settlement does not provide any damages or monetary compensation and only applies to travelers denied entry who physically made it to the U.S. It is possible that those affected by the settlement may include international students enrolled at American universities who went home and were affected by the Executive Order. It is believed that the number of individuals covered by the settlement is small because it covers only those individuals who were denied entry into the U.S. in the time period between issuance of the Executive Order and a federal judge’s issuance of a temporary injunction immediately thereafter. Affected individuals will be contacted based on the contact information (e.g., email, phone, mailing address) they provided in their visa applications filed with the Department of State. They will be notified that they have three months to reapply for visas.  

Separately, the second revised travel ban is scheduled for oral arguments before the U.S. Supreme Court next month regarding its legality.

DACA Program Rescinded

The Trump Administration announced this week that it is phasing out the Deferred Action for Childhood Arrivals (DACA) program. DACA is a program that allows certain individuals who came to the United States as children, have continuously resided in the U.S., and are in school, graduated from high school or obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the military, to apply for benefits. These benefits include deferral of deportation and work authorization. California and Texas have the highest numbers of DACA beneficiaries in the country, followed by New York, Illinois, and Florida. The program has not been without controversy, and recently the attorneys general of Texas and several other states threatened to initiate litigation in federal court if the Administration did not rescind the program. On September 5, 2017, Attorney General Jeff Sessions announced that DACA is being rescinded and that the Department of Homeland Security (DHS) will begin a phasing out of the program. 

While international students currently in F-1 status will not be directly impacted by rescission of the DACA program, institutions of higher education will feel the effect on certain members of their student body, including the affected student’s ability to access in-state tuition, financial aid, and employment when his/her DACA benefits expire. Members of the higher education community, including the American Council on Education (ACE) and  Association of American Universities (AAU), have criticized the Administration’s decision to end DACA.

DACA is a program implemented in 2012 under the Obama Administration. It has provided relief from deportation to approximately 700,000–800,000 individuals who would otherwise be in the country unlawfully. Under DACA, beneficiaries removal (aka deportation from the U.S.) is deferred during the duration of the program. Once the program ends, beneficiaries revert back to their original status and may be subject to removal from the U.S. for being unlawfully present in the country. The DACA program provides recipients renewable two-year term benefits, including an employment authorization document (EAD).  According to the DHS, DACA beneficiaries will be allowed to retain both their DACA status and their EAD until they expire. DACA-issued benefits are due to expire this year, in 2018 and 2019. On a limited basis, U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Certain pending DACA renewal requests and associated applications for EADs where beneficiaries benefits will expire between September 5, 2017, and March 5, 2018, will be adjudicated if the renewal request is filed prior to October 5, 2017.

It is important to note that DACA beneficiaries are lawfully able to be in the U.S. and work for the duration of the program as the program is being phased out and not ended effective immediately. 

Additional resources provided by DHS:


U.S. Travel & Immigration Policy Updates – August 28, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Suspension of Nonimmigrant Visa Operations in Russia; Impact on International Students

On August 21, 2017, the State Department announced that — due to the Russian government’s cap on U.S. diplomatic personnel in Russia — all  nonimmigrant visa (NIV) operations across Russia will be suspended beginning on August 23, 2017.  Operations will resume at the U.S. Embassy in Moscow on September 1, 2017, but visa operations at U.S. consulates will remain suspended indefinitely. Because NIV interviews will be conducted only at the U.S. Embassy in Moscow, and due to reduced staffing levels to comply with the Russian government’s cap on personnel, NIV applicants can expect delays in their interview process as well as travel to Moscow unless they are local. NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice.

For international students this means that currently scheduled appointments will be cancelled and applicants will be provided instructions on how to reschedule. The U.S. Mission began cancelling current NIV appointments countrywide on August 21.  Affected students should have received an email with a phone number to call to reschedule their interview at the U.S. Embassy in Moscow at a future date. According to the State Department’s Fact Sheet, the U.S. Embassy in Moscow is planning to offer a block of visa appointments to international students in early September.

For rescheduling of NIV interviews and other questions, contact: +7 (495) 745 3388 or 8 800 100 2554 (ITFN).


U.S. Travel & Immigration Policy Updates – July 18, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Proposal by the Trump Administration to Change the International Student Visa Program; GMAC Suggests Schools and Universities Take Action

This week The Washington Post reported on a proposal being floated by the U.S. administration that will require international students to renew their F-1 visa annually as well as potentially eliminate entry into the United States pursuant to Duration of Status (D/S). The latter would be replaced by international students and scholars only being admitted for a fixed period of time. D/S is a notation on student’s Form I-94 indicating that the individual is authorized to remain in the United States as long as he or she maintains a valid status. Usually, this allows students to remain in the United States as long as necessary to complete their programs.

Notwithstanding that international students are some of the most heavily tracked visitors to the United States, the F-1 student visa program is one of several programs under scrutiny by the administration. According to the Washington Post article “officials say the proposal seeks to enhance national security by more closely monitoring the students.” The belief by some in the administration is that international students have the highest visa overstay rates and therefore require additional scrutiny.

For this proposal to go from theory to practice will require time and consultation between the Department of Homeland Security and Department of State as it faces legal obstacles and challenges. Practically speaking, if this proposal moves forward and becomes a reality it will dramatically change the student visa program. It will mean additional paperwork obligations for international students as well as Designated School officials, additional visits to American embassies and consulates, additional filings with Homeland Security and increased costs for students. It will also mean that rather than being admitted to the United States for the duration of a program, students will need to annually renew their status which may present challenges to long-term planning since it is based on annual renewal of their visa.

Schools and universities are strongly encouraged to raise this issue internally with your government relations team and/or directly with your members of Congress so that they hear from you before the administration engages in rulemaking or issues guidance promoting this proposal. It is important to flag for your government relations team and members of Congress the importance and contributions of international students to your program and the detrimental effect this proposal will have on recruitment and retention of international students. GMAC joined other higher education associations and organizations in a letter to the Department of Homeland Security opposing the proposal. To read the letter click here. Schools and universities may use language within this letter should they seek to take action by drafting a similar letter.


U.S. Travel & Immigration Policy Updates – June 30, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

What Does the Supreme Court Ruling Mean for the President’s Travel Ban Executive Order and How Will It Impact the Higher Education Community?

This week the U.S. Supreme Court ruled to allow partial implementation of the United States President’s executive order on travelers from six Muslim-majority countries and said they would give full consideration to the matter during the October term to determine the legality of the President’s executive order. While allowing the Administration to implement portions of the executive order, the Court also narrowed the scope of the travel and refugee bans. Guidance is starting to emerge which will hopefully provide a clearer picture of what the higher education community, especially international candidates who may or are applying to U.S. schools and students presently studying in the United States can expect now that a limited version of the President’s travel ban will take effect. Bottom line is that the travel ban being implemented by the Administration appears to most directly affect individuals without a valid visa. Although having said that, the ban does not prohibit issuance of a visa during the 90-day period if the individual can demonstrate a credible claim of a bona fide relationship with an entity in the United States, such as a university.

  • The travel ban will be enforced against nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen but only in certain instances. The Supreme Court’s decision states that citizens from the six majority-Muslim countries who lack any “bona fide relationship with a person or entity in the United States” are banned for the 90-day period. Said differently, the Supreme Court states in its opinion that the travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” This means that those seeking to travel to the United States to study or work, even if from one of the six countries, can apply for a visa to travel to the United States. That is because the Supreme Court’s opinion allows “students from the designated countries who have been admitted to the University of Hawaii [to] have such a relationship with an American entity.” The reference to the University of Hawaii is because that is one of the plaintiff’s challenging the executive order.
  • Due to a memorandum issued by President Trump earlier in June, the Administration will begin implementation of portions of the executive order within 72 hours of the injunctions being lifted or stayed. The Supreme Court granted the government’s applications to stay the injunctions issued by the federal courts in the Fourth and Ninth Circuits.
  • On June 29th the Department of Homeland Security (DHS) issued guidance on implementation of certain travel restrictions in the President’s Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States which went into effect at 8 pm EDT on June 29 (EO). The travel restrictions do not apply to certain individuals seeking entry into the United States, including (i) lawful permanent residents; (ii) dual nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen who are traveling on a passport issued by a country other than one of those six countries; and (iii) any national who has obtained a waiver pursuant to the terms of the executive order or any individual covered by the portion of the injunction not stayed by the Supreme Court’s decision, i.e., “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” The latter is the important part of the Supreme Court’s decision because this appears to mean that international students and faculty from one of the six affected countries can still apply for a visa and travel to the United States to study or work since they have a bona fide relationship with an entity (i.e., a university) in the United States.
  • The guidance from DHS makes clear that “visas that have been issued by the Department of State prior to the effective date of the Executive Order - June 29 at 8 p.m. EDT - are to be considered as valid for travel and seeking entry into the United States unless revoked on a basis unrelated to EO 13780. Persons from the six countries presenting themselves for entry with a valid previously issued visa and who meet other universally applied entry requirements will be admitted.” In a Frequently Asked Questions section of their website, DHS also clarifies that individuals in the United States in possession of a valid multiple entry visa who are from one of the affected countries can travel abroad and return to the United States.

International students and faculty seeking to travel to the United States from one of the six affected countries should consult with an immigration attorney prior to applying for a visa at a U.S. embassy or consulate, prior to travel to the United States, or prior to departure from the United States. Guidance from DHS clarifies that students and faculty with valid visas to travel will not be affected. However, individuals from the six affected countries who need to travel to the United States and do not have a valid visa will be affected. From State Department guidance it appears that qualified applicants in F-1 or H-1B status are considered exempt from the EO has a bona fide relationship to a person or entity in the United States exists. In fact, the State Department guidance specifically allows students who are temporarily outside of the United States and seeking to now return to school to return under the following conditions. First, if they have a valid, unexpired visa the EO should not affect them upon return travel to the United States. If they do not have a valid, unexpired visa, the guidance states that “the Supreme Court’s decision specified that section 2(c) of the Executive Order may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. One example cited in the Supreme Court’s decision was a student from a designated country who had been admitted to U.S. university, thereby demonstrating a credible claim of a bona fide relationship with an entity in the United States.”


U.S. Travel & Immigration Policy Updates – June 13, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Travel Ban Again Halted by the Courts
The Ninth Circuit Court of Appeals blocked the Administration’s’ travel ban, ruling that the President exceeded his authority delegated to him by Congress and that the executive order runs afoul of the Immigration and Nationality Act that prohibits nationality-based discrimination. This means that both the Fourth and Ninth Circuit Courts of Appeals have blocked the Administration’s travel ban that would restrict travel to the United States by individuals from certain countries, suspend refugee admissions, and limit the number of refugees admitted in fiscal year 2017 to 50,000. The case is State of Hawaii v. Donald J. Trump et. al, case number 17-15589.

An important argument in the Ninth Circuit case focuses on education and public universities and the harm the Administration’s executive order could impose on visiting students, scholars, and faculty and their recruitment and enrollment at the undergraduate and graduate levels.

The Department of Justice will very likely request that the U.S. Supreme Court intervene in this decision and has already appealed the Fourth Circuit ruling to the Supreme Court.

Increased Vetting of Visa Applicants

International students could experience increased vetting at U.S. Embassies and Consulates abroad when applying for visas. The Department of State has received emergency approval to collect additional information regarding certain visa applicant’s travel, address and employment history, familial connections, social media platforms and identifiers, and phone numbers and email addresses. The State Department estimates that 0.5 percent of U.S. visa applicants worldwide — in the range of 65,000 individuals — will present a threat profile requiring this enhanced screening. The Federal Register notice was published in May and approved last month for a six month period.

It is important to note that this enhanced screening will not apply to all visa applicants, only those that the State Department determines present a threat profile requiring the additional scrutiny. Furthermore, this is a temporary measure as approval for this enhanced screening expires at the end of November 2017. Enhanced screening will not apply to citizens who can be admitted under the visa waiver program but international students from non-visa waiver countries could be subject to such. This includes citizens in the Middle East, Africa and Latin America. From a memo written by Secretary of State Rex Tillerson to all U.S. Embassies and Consulates, it appears that — at a minimum — nationals from Iran, Yemen, Sudan, Syria, Somalia and Libya will be targeted for additional screening.

Read more by clicking here and here.


U.S. Travel & Immigration Policy Updates – June 2, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Is There Value in Graduate Management Business Programs Pursuing a STEM Designation?

Yes, there can be and an increasing number of graduate management programs have received this designation. One advantage of doing so is that it grants international students with another tool in the proverbial tool box to seek employment post-graduation by way of a 24-month STEM OPT extension. While STEM designation is possible for specialized graduate business programs, seeking such a designation will require forethought and work. It requires a blending of STEM disciplines (Science, Technology, Engineering and Math) with business and management. The blending of the two isn’t a new idea and it reflects the increased importance of STEM to those graduating from graduate management business programs as well as to employers. The relevance of STEM to business programs and the workplace has also been highlighted in recent articles, including an article in BizEd and an article by the World Economic Forum. From an immigration perspective, a benefit of STEM designation is that international students graduating from such a program are eligible for a 24-month STEM OPT extension, in addition to the regular post-completion 12-month OPT period.

The current rule is that international students who recently completed a degree, or have a prior degree, at the bachelor’s level or higher in a field that is currently included on the Department of Homeland Security’s (DHS) STEM Designated Degree Program List may qualify for a 24-month STEM OPT extension. This translates into an international student receiving a work permit for 24-months post-graduation as long as they hold a bachelor’s degree or higher in an eligible STEM field from a U.S. institution of higher education and the employment opportunity is directly related to the STEM degree. This 24-month extension can be in addition to the regular post-completion 12-month OPT period. The prior rule was that only the most recent degree qualified for the 24-month STEM OPT. However, in part due to advocacy efforts by GMAC, the government changed this restrictive requirement and now allows for the STEM degree to be the most recent degree or a prior degree, as long as issued by a U.S. institution of higher education. Also in part due to the Council’s advocacy efforts, DHS included in the rule that DHS may consider a degree to be in a STEM field even if it is not within the Department of Education’s Classification of Instructional Programs (CIP) series.

How is a program designated on the DHS’s STEM program list? DHS maintains a complete list of fields that fall within the regulatory definition of a “STEM field” that qualifies certain degrees to receive the 24-month extension. The list is known as the STEM Designated Program List and it includes the Department of Education’s CIP codes which identify which fields within science, technology, engineering or mathematics are STEM fields of study. To receive a STEM-designated code for a program, a school must first consider if a current CIP code is applicable. Since it is likely not for most MBA programs, an argument would need to be made to DHS as to why a particular program should be listed on the STEM Designated Program List and that is where it will be critical to demonstrate the relatedness of a particular business or management program to a STEM field. Click here to learn more about how DHS determines which degrees qualify for the STEM OPT extension.

Consider the example of the Wisconsin School of Business, which states on its website that two specialized MBA programs have “become the first MBA programs in the country to receive a CIP code” with STEM designation from DHS for their operations and technology management and supply chain management specializations within their MBA program. The programs were recognized for their STEM orientation and focus on quantitative learning approaches. While DHS recognizes all fields of study in the four core STEM areas of engineering, biological sciences, mathematics and physical science, DHS will also consider “related fields” and this is what MBA programs should focus on if they are interested in seeking STEM designation as DHS will consider a degree to be in a STEM field even if it is not within the CIP two-digit series for the four identified core areas. “Related fields” are those that “include fields involving research, innovation or development of new technologies using engineering, mathematics, computer science or natural sciences (including physical, biological and agricultural sciences).”

Other examples of graduate business schools with STEM designations include:

  • MIT Sloan Master of Finance received classification as a STEM program.
  • The University of Iowa Business Analytics Academy at Tippie College of Business’ MBA program received a STEM designation for their MBA with a business analytics concentration.
  • Syracuse University’s Martin J. Whitman School of Management’s M.S. in Finance program is designated as a STEM program, as is their M.S. in Business Analytics program.
  • Loyola University of Chicago’s Quinlan School of Business’ Master of Finance, Master of Information Systems Management, and Master of Supply Chain Management are STEM designated.


Court Dismisses Legal Challenge to the International Student Optional Practical Training Program

We previously reported on litigation related to international students and work authorization pursuant to optional practical training (OPT). The case is Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., case number 1:16-cv-01170, in the U.S. District Court for the District of Columbia. The plaintiff, Washington Alliance of Technology Workers (“Washtech”), was challenging the Department of Homeland Security’s (DHS) authority with respect to the F-1 student OPT program — meaning post-graduation employment authorization — including DHS’s authority to grant an additional 24-month work authorization period under STEM OPT.

On April 19, 2017, U.S. District Judge Reggie B. Walton dismissed WashTech’s June 2016 lawsuit for lack of standing and failure to plausibly state claims that are entitled to relief. That is positive news for international students pursuing employment based on OPT, whether 12- or 24-months.


U.S. Travel & Immigration Policy Updates – May 17, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

U.S. President’s Travel Ban Executive Order Has its Day(s) in Court

The United States President’s revised travel ban executive order issued in March 2017 was the subject of two hearings in federal court during which oral arguments were heard by panels of three judges in Seattle, Wash., and 13 judges in Richmond, Va.

To quickly recap, there are two cases in the federal court system challenging the President’s travel ban executive order. They are – State of Hawaii et al. v. Donald Trump et al., case number 17-15589, in the U.S. Court of Appeals for the 9th Circuit and International Refugee Assistance Project et al. v. Trump et al., case number 17-1351, in the U.S. Court of Appeals for the 4th Circuit. The Fourth Circuit Court of Appeals heard oral arguments on the case on May 8, and the Ninth Circuit Court of Appeals heard oral arguments on May 15.

Plaintiffs face issues related to standing, national security and the broad authority of the President on immigration matters. The government continues to face questions about whether this is a religious ban and the President’s prior statements on banning all Muslims. In both cases the government is appealing a lower court’s ruling blocking the ban and seeking to vacate (or lift) the injunction against the ban.

C-SPAN covered both hearings and recordings can be found by clicking here for the Fourth Circuit and clicking here for the Ninth Circuit.

If either federal appellate court upholds one of the nationwide injunctions, the issue would then have to be decided by the U.S. Supreme Court. During the first failed executive order issued by President Trump in January, the administration opted to re-write the executive order rather than ask the Supreme Court to intervene. Rulings in the Fourth and Ninth Circuits are expected this month. If this ultimately goes to the Supreme Court, universities and international students should be prepared for a long-haul as the Court’s summer recess begins in June/July and they are in recess until October. Thereafter, oral arguments would need to be set. Meaning, this could drag on for months as neither side shows any inclination to drop the litigation.


U.S. Travel & Immigration Policy Updates – May 2, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Status of Court Proceedings Related to the President’s Travel Ban

The President’s proposed travel ban continues to be on hold due to continuing court challenges. Upcoming hearings are scheduled for these cases. The two cases challenging President Trump’s travel ban executive order are State of Hawaii et al. v. Donald Trump et al., case number 17-15589, in the U.S. Court of Appeals for the 9th Circuit and International Refugee Assistance Project et al. v. Trump et al., case number 17-1351, in the U.S. Court of Appeals for the 4th Circuit. Last week, the state of Hawaii urged the 9th Circuit Court of Appeals to uphold a preliminary injunction that halted the President’s revised executive order on immigration from six predominantly Muslim countries. An appeal by the Trump administration is scheduled to be heard by a panel of judges of the 9th Circuit Court of Appeals on May 15. In the 4th Circuit case, a full bench hearing is set for May 8.

International students from the affected countries — Iran, Libya, Somalia, Sudan, Syria, Yemen — may wish to monitor the litigation, and any travel plans, new visa applications or visa renewals should be reviewed with an immigration attorney to discuss timing and the potential impact of the executive order if it is reinstated by the courts. Again, at this time the executive order is on hold and neither the State Department nor Department of Homeland Security are taking restrictive action. Amicus briefs (aka “friend of the court” briefs) have been filed by various organizations and associations in support of the State of Hawaii and the International Refugee Assistance Project’s positions, including by amici colleges and universities. Click here to read more about the amicus brief filed by over 30 universities in both the Ninth Circuit and Fourth Circuit cases. The briefs provide a list of participating universities. Moving forward, interested universities should inquire of their public affairs and government relations team regarding potential participation in amicus briefs to address concerns about international students, faculty and scholars related to the travel ban.

U.S. Travel & Immigration Policy Updates – April 25, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

President Trump Signs Executive Order Targeting Guest Worker Visa Programs

The latest executive order signed by President Trump on April 18, 2017, is dubbed, Buy American and Hire American. It states that it shall “be the policy of the executive branch to buy American and hire American.” By “Hire American” the executive order states, “[i]n order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad…,” including laws governing workers performing skilled or unskilled labor in the United States. (Section 2)

The executive order calls on multiple federal agencies, including the Departments of State, Justice, Labor and Homeland Security, to “…propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” (Section 5) The executive order specifically calls out the H-1B visa program and requires these same federal agencies to “…suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” (Section 5)

Regarding this executive order, the President is asking his federal agencies to revisit current regulations and guidance and provide proposed changes to guest worker programs. It points the administration in the direction of proposing changes to the H-1B visa program by focusing on “the most skilled” or “highest-paid” beneficiaries and away from the current system of high skilled labor where all candidates who meet the minimum qualifications under the H-1B visa category are essentially equal when it comes to selection in the H-1B lottery. The idea of “most skilled” reinforces what this administration has previously said about moving our immigration system to a merit-based system.

In a background briefing on the executive order by senior administration officials, “Hire American” was clarified to refer generally “to the body of law and policy concerning how our immigration, visa and guest worker programs are operated to ensure proper protections for American workers.” Some concrete changes to the H-1B visa program could come in the form of increased fees and an adjustment to the wage scale used to qualify for an H-1B petition. Interestingly, it appears the administration is highlighting foreign students with master’s degrees as a positive. A senior administration official stated during the background briefing the following about potential reforms to the H-1B visa program — “You could see potential — and again, we'll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master's degree holders. There's ways that you could adjust the lottery system to give master's degree holders a better chance of getting H1Bs relative to bachelor's degree holders. There's a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.”

Moving forward expect the administration to continue with this theme of seeking reforms to protect American workers as well as root out fraud and abuse. Also, expect the administration to seek to effect change through administrative agency action over congressional action. However, there is a limit to how much they can affect through guidance and rulemaking. For instance, the administration cannot change the number of H-1B visas (i.e., 65,000 or 20,000), only Congress can do that, but they can change, increase fees or change wage scales. 

Click here to read an article by the Chronicle of Higher Education on this same topic.

U.S. Travel & Immigration Policy Updates – April 17, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Can Your Electronic Devices be Seized and Searched at U.S. Borders? Short Answer, Yes.

Last month GMAC held a webinar on recent immigration policy changes and the changing political landscape. During this webinar there was a discussion, and follow up questions, about the rights of international students seeking entry into the United States through international airports or other ports of entry.

Individuals seeking entry into the U.S., including international students, have limited rights at the U.S. border. An F-1 visa stamp in your passport allows you to travel to the U.S., however, you must still be admitted into the country by U.S. Customs and Border Protection (CBP) and that means you need to demonstrate your eligibility to be admitted in the specific visa category for which you are seeking entry. As a general rule of thumb, it is best to be prepared to answer questions about your school, program and course of study and have documentation to support such. But what happens if CBP asks to look at your smartphone or laptop computer? Can you object?

Concerns have been raised about situations in which CBP agents seek access to travelers’ electronic devices — laptops and smartphones — at international airports or other ports of entry in the U.S. In 2015 CBP issued a document entitled, “Inspection of Electronic Devices – Tear Sheet,” that describes why an individual may be chosen for inspection when seeking entry into the United States, CBP’s authority to search, and what to expect regarding CBP’s right to access your electronic device(s). Keep in mind that “all persons, baggage, and merchandise arriving in, or departing from, the U.S. are subject to inspection, search and detention.” Electronic devices can therefore be “detained” for examination. Although the notice only provides an example of a phone being seized for further examination, consider CBP’s authority to cover other electronic devices. It is important for travelers to the U.S. to understand that CBP does have the authority to search electronic devices at the border. Furthermore, although it is a controversial policy it is not new. In 2009, CBP issued Directive 3340-049 on the subject of “Border Search of Electronic Devices Containing Information” spelling out their authority and policies with respect to searching and retaining “computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices” encountered by CBP at the border to ensure compliance with customs, immigration and other laws they are authorized to enforce.

Travelers can object to the search of their electronic device but given the fact that the government claims the authority to search all electronic devices at the border, even without a warrant, it is likely that your objections will fall flat. It is also important to understand that CBP may conduct a cursory review of your electronic device, such as a smartphone, or they may seek to download or copy data on your electronic device. The “search” of the device may take place on-site or off-site, and generally the government may hold your electronic device for five days prior to its return.

If your electronic device is seized by CPB, make certain to get a receipt and confirm that it describes your device and provides information about who to contact regarding its return. If the device is password protected, international travelers such as those seeking entry in F-1 status should understand that failure to provide the password may lead to denial of entry. One option is to not share the password with CBP but offer to enter it yourself and then change your password once the device is returned. If you are traveling with private or sensitive information, attorney client privileged information, or confidential business information consider speaking with an attorney prior to travel and/or advise your university of such to determine the best course of action to safeguard any such data.


U.S. Travel & Immigration Policy Updates – April 4, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Update on the Status of Court Proceedings Related to the Travel Ban

On April 3, 2017, the Ninth Circuit Court of Appeals agreed to hear President Trump’s appeal of a Hawaii federal judge’s preliminary injunction of his executive order which, among other things, would put in place a travel ban on individuals from six Muslim majority countries. The Ninth Circuit granted the government’s request to expedite the proceedings, setting up a briefing schedule for the parties in April and a hearing date in May.

The case is State of Hawaii et al. v. Donald Trump et al., case number 17-15589, in the U.S. Court of Appeals for the Ninth Circuit. 

There is also a separate challenge to the President’s second executive order related to the travel ban pending in the Fourth Circuit, which the government has also appealed. Oral arguments in a ruling by U.S. District Judge Theodore Chuang in Maryland blocking the executive are scheduled for May. Important to note is that 13 states, represented by 12 attorneys general and the Governor of Mississippi filed an amicus brief in the Fourth Circuit asking the court to uphold the President’s executive order, arguing that it is within the President’s authority and powers delegated to him for national security, foreign affairs and immigration purposes to act in such a manner. The states that signed onto the amicus brief are Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, Oklahoma, South Carolina, South Dakota, West Virginia and Mississippi.

The case is International Refugee Assistance Project et al. v. Trump et al., case number 8:17-cv-00361, in the U.S. District Court for the District of Maryland.

International students and faculty should continue to monitor the proposed presidential executive order which includes the travel ban and the corresponding litigation. The litigation pending in the federal courts could move quickly and depending on the outcome, the Department of Homeland Security could move to immediately implement the travel ban assuming they are successful in court. This means that any travel plans into and outside the United States by individuals from the affected countries should be reviewed with an immigration expert to determine whether travel is recommended, especially if the individual’s visa is due to expire or they require a visa to travel to the United States.

Update on the Status of Court Proceedings Related to the F-1 Visa Optional Practical Training

On March 30, 2017, U.S. District Judge Reggie B. Walton granted in part and denied in part the government’s motion to dismiss the plaintiff’s complaint in litigation related to work authorization pursuant to optional practical training (OPT). The Court indicates in its Order that it will issue a Memorandum Opinion within 30 days detailing its decision. The litigation challenges the Department of Homeland Security’s (DHS) authority with respect to the F-1 OPT program — meaning post-graduation employment authorization — including DHS’s authority to grant an additional 24-month work authorization period under STEM OPT.

The case is Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., case number 1:16-cv-01170, in the U.S. District Court for the District of Columbia.

The F-1 OPT program and corresponding work authorization is under scrutiny by both the Trump Administration and the U.S. Congress, but especially at this time, by the Administration. Proposed rulemaking is expected in the future, and it is possible that the Administration will seek to curtail OPT work authorization. This proposed federal rulemaking would be separate from the WashTech litigation, but taken collectively both have the potential to impact whether F-1 students can work in the United States in the future.

Shake Ups Expected for the H-1B Visa Program

Based on a series of announcements and policy memorandum issued by the Department of Homeland Security, the White House and the Department of Justice, employers and workers using the H-1B visa program can expect to see changes. According to U.S. Citizenship and Immigration Services (USCIS), the measures are aimed at deterring and detecting H-1B visa fraud and abuse. Therefore, employing targeted site visits, USCIS will focus on H-1B cases (i) where they cannot validate the employer’s basic business information through commercially available data; (ii) H-1B dependent employers; and (iii) where employers petition for H-1B workers who work off-site at another company or organization’s location. The Department of Justice issued a warning to U.S. employers cautioning those petitioning for H-1B workers about discriminating against U.S. workers through the hiring of foreign workers.

In Policy Memorandum dated March 31, 2017, USCIS calls into question whether the position of a computer programmer necessarily qualifies as an H-1B specialty occupation. The memorandum states, “the fact that a person may be employed as a computer programmer and may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job is not sufficient to establish the position as a specialty occupation….Instead, a petition must provide other evidence to establish the particular position is one in a specialty occupation….”

U.S. Travel & Immigration Policy Updates – March 20, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.


Travel Ban Again Halted by the Courts
On March 6, 2017, President Trump signed an executive order restricting travel to the United States by individuals from certain countries, suspending refugee admissions, and limiting the number of refugees admitted in fiscal year 2017 to 50,000. This is the second such executive order signed by President Trump and now the second executive order stopped by the courts. The latest executive order is entitled Protecting the Nation from Foreign Terrorist Entry into the United States. It revokes the prior executive order (EO 13769) signed by President Trump on January 27, 2017, which was on hold as a result of litigation.

Of immediate concern for international students and faculty is that the updated executive order would temporarily ban individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days from the effective date of the order, which was March 16, 2017. Individuals from Iraq are not included on this list. The travel ban would apply to foreign nationals of the designated countries who are (i) outside the United States on the effective date of the order; (ii) did not have a valid visa as of January 27, 2017; and (iii) do not have a valid visa as of the date of this executive order. The executive order would not apply to lawful permanent residents and certain other categories of foreign nationals seeking entry into the United States.

However, the travel ban is on hold as federal judges in Hawaii and Maryland have enjoined the latest executive order from going into effect. In a suit brought by the State of Hawaii, U.S. District Court Judge Derrick K. Watson issued a nationwide temporary restraining order on March 15, 2017, temporarily enjoining the administration from enforcing and implementing Section 2 (the 90-day travel ban on nationals of six countries) and Section 6 (suspension of the refugee program for 120 days) of the executive order. In Maryland, in response to a complaint filed by the American Civil Liberties Union and the National Immigration Law Center, U.S. District Court Judge Theodore D. Chuang issued a nationwide preliminary injunction prohibiting enforcement of the 90-day travel ban.

Relevant to the academic community, in its complaint the State of Hawaii claimed in part that its public university, the University of Hawaii, would be hurt by the executive order, both financially and due to non-monetary losses. In his opinion, Judge Watson states that “for purposes of the instant Motion for TRO, the State has preliminarily demonstrated that…its universities will suffer monetary damages and intangible harms...” from implementation of the executive order. The Department of Justice and the White House have stated that the administration will appeal both rulings and it is important to note that both judicial actions are temporary in nature and therefore should be closely monitored for developments.


U.S. Travel & Immigration Policy Updates – March 7, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

On March 6, 2017, President Trump signed an executive order restricting travel to the United States by individuals from certain countries, suspending refugee admissions, and limiting the number of refugees admitted in fiscal year 2017 to 50,000.

Of immediate concern for international students and faculty is that the updated executive order will temporarily ban individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days from the effective date of the order, which is March 16, 2017. Individuals from Iraq are not included on this list. The travel ban will apply to foreign nationals of the designated countries who are (i) outside the United States on the effective date of the order; (ii) did not have a valid visa as of January 27, 2017; and (iii) do not have a valid visa as of the date of this executive order. The executive order does not apply to lawful permanent residents and certain other categories of foreign nationals seeking entry into the United States.

The executive order is entitled Protecting the Nation from Foreign Terrorist Entry into the United States. It revokes the prior executive order (EO 13769) signed by President Trump on January 27, 2017, which was on hold as a result of litigation.

To learn more click here; and also read Homeland Security Secretary Kelly’s statement on the executive order; as well as the Fact Sheet and Q&A released by the Department of Homeland Security. According to the Fact Sheet, the executive order will affect travel by nationals of the six countries as follows – “For the next 90 days, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the United States on the effective date of the order, do not currently have a valid visa on the effective date of this order, and did not have a valid visa at 5:00 eastern standard time on January 27, 2017, are not eligible to travel to the United States. The 90-day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.” Again, the “effective date” of the order is March 16, 2017.

Questions 24 and 25 of the Q&A specifically address questions for international students, exchange visitors and their dependents. The questions are below:

“Q24. Are international students, exchange visitors, and their dependents from the six countries (such as F, M, or J visa holders) included in the Executive Order? What kind of guidance is being given to foreign students from these countries legally in the United States?

The Executive Order does not apply to individuals who are within the United States on the effective date of the Order or to those individuals who hold a valid visa. Visas which were provisionally revoked solely as a result of the enforcement of Executive Order 13769 are valid for purposes of administering this Executive Order. Individuals holding valid F, M, or J visas may continue to travel to the United States on those visas if they are otherwise valid.

Please contact the State Department for information about how the Executive Order applies to visa applicants.

Q25. What happens to international students, exchange visitors or their dependents from the six countries, such as F, M or J visa holders if their visa expires while the Executive Order is in place and they have to depart the country?

The Executive Order does not affect F, M, or J visa holders if they currently have a valid visa on the effective date or held a valid visa on January 27, 2017 prior to the issuance of the Executive Order. With that said, travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers whose visa expires after the effective date of the Executive Order must obtain a new, valid visa to return to the United States.


U.S. Travel & Immigration Policy Updates - February 13, 2017

Prepared on behalf of GMAC by Montserrat Miller, partner in the Privacy and Consumer Regulatory; Immigration; and Government Affairs practice groups at Arnall Golden Gregory LLP in Washington, D.C.

Status of President Trump’s Travel Ban and the Effect on Institutions of Higher Education and International Students, Scholars and Faculty

The President’s Executive Order (EO) on immigration remains on hold. Last week a three judge panel of the U.S. Court of Appeals for the 9th Circuit, in a unanimous decision, upheld the stay against the President’s EO which was put in place by Judge James Robart of the U.S. District Court for the Western District of Washington on February 3rd, 2017. This particular immigration-related EO seeks to ban nationals from the following seven countries from entering the United States—Iran, Iraq, Libya, Syria, Sudan, Somalia and Yemen—for 90 days, Syrian refugees indefinitely, and all refugees for a period of 90 days.

The Administration’s proposed travel ban affected international faculty, students and scholars and their ability to freely enter the United States as well as restricted those within the United States to remaining in place. Challenges to the EO were brought on different grounds, including arguments by the States of Washington and Minnesota that the EO harms their public universities. Judge Robart stated in the Temporary Restraining Order against the President’s EO that “the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning….” The unanimous decision by the 9th Circuit Court of Appeals states, “…the States allege that teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries….” In sum, part of the challenge to the President’s immigration EO rests on the harmful effect of such a travel ban on international students, scholars and faculty in public universities and colleges.

It is important to note that this EO and the litigation around it remains on-going and fluid and international students, scholars and faculty from the seven countries are cautioned to not make travel plans outside the United States without consulting with their Designated School Official (DSO) as well as immigration counsel. The 9th Circuit Court of Appeals’ decision relates to the stay on implementing the EO issued by the lower court, but does not directly address the legality of the EO itself, which will be addressed in the lower court. The latest news is that President Trump and his team are assessing whether to continue the current litigation by, for instance, appealing to the U.S. Supreme Court or the full 9th Circuit Court of Appeals, or revising and issuing a new EO.

This situation should be closely monitored. The latest statement from the Department of Homeland Security (DHS) on February 4th, 2017 was that they have “suspended any and all actions implementing the affected sections” of the EO and DHS will resume inspection of travelers “in accordance with standard policy and procedure.” See also news from U.S. Customs and Border Protection (CBP) on the travel ban and current status at ports of entry.

Additional articles on the academic community’s response to the ban can be found here, here and here


Pending Legislation

Expect a high number of immigration-related bills to be introduced in both chambers of the U.S. Congress during the 115th Congress, which started on January 3, 2017. Here are two examples:

  • The H-1B and L-1 Visa Reform Act of 2017 (S. 180) introduced by Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL) seeks to reform the H-1B and L-1 system. One way this would be accomplished is by prioritizing those with advanced degrees as well as international students educated in the United States. H-1B petitions would be ranked in order of priority, with for instance, advanced degrees in science, technology, engineering and mathematics taking precedence over other advanced degrees. The bill eliminates what is commonly referred to “B-1 in lieu of H-1.” Stay tuned for more updates.
  • The Reforming American Immigration for Strong Employment Act (the RAISE Act) introduced by Senators Tom Cotton (R-AK) and David Perdue (R-GA). The bill would reduce legal immigration by (i) cutting the number of immigrants by half, to 500,000 annually by limiting the number of family-based visas; (ii) eliminating the Diversity Visa Lottery program which grants 50,000 visas annually; and (iii) capping the number of refugees who receive green cards to 50,000 per year. The bill does not address employment-related immigration. For more about this legislation click here. Stay tuned for more updates.

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