By: Sharon Barney, Esq.

With the new academic year approaching, students are preparing for classes, homework, and extracurriculars. However, international students are facing additional barriers that they will need to navigate based on U.S. Citizenship and Immigration Services (“USCIS”) policy changes that will impact their visas, unlawful presence, and Optional Practical Training (“OPT”) placements.

On August 9, 2018, USCIS posted a new policy memorandum that changes how those in F, J, or M visa status (international students and scholars) begin accruing “unlawful presence” (“ULP”). ULP can determine whether an individual is barred from applying for a visa or entering the United States for a period of time, so it is crucial to determine when this takes place. Previously, those in F, J, or M status only began accruing ULP after the Department of Homeland Security (“DHS”) denied an immigration benefit, an immigration judge ordered them removed, or after the I-94 has expired. Now, those in F, J, or M status will begin accruing ULP starting on August 9, 2018 based on other actions, including failing to pursue a course of study or unauthorized employment, and the international student may not find out about the status violation until after much time has passed. Those F, J, and M status holders who are currently failing to maintain their lawful status will begin accruing ULP starting on August 9, 2018. Taken in concert with a previous client alert regarding other important USCIS changes, international students should be concerned about the possible ramifications of any change to their situation.

In April 2018, USCIS changed its website language to indicate that international students in science, technology, engineering and mathematics (“STEM”) OPT are not permitted to work at third party placements, as they could not show a bona fide employer-employee relationship. However, Immigration and Customs Enforcement (“ICE”), the agency responsible for overseeing the OPT program, has not changed its guidance. Recently, a case was filed in the U.S. District Court for the Northern District of Texas seeking an injunction to the policy, with the plaintiffs arguing that the website change needed to undergo a formal rulemaking with a notice and comment period before being implemented. A hearing on the issue will be held on August 20, 2018.

Finally, on July 17, 2018, DHS issued a proposed rule which seeks to increase Student and Exchange Visitor Information System (“SEVIS”) fees. If the rule is implemented, F and M international students will pay a $350 SEVIS fee (an increase from $200) and J students and scholars will pay a $220 fee (an increase from $180). These proposed changes are open for public comment until September 17, 2018.

If you have any questions regarding the USCIS policy changes that will impact their visas, unlawful presence, and OPT placements, please contact Sharon Barney. Sharon is Counsel in Leech Tishman’s Immigration and Family Law Practice Groups. Sharon is based in the firm’s State College office. Sharon can be reached at 814.954.5904 or sbarney@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in El Segundo, CA, Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.

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