2020 U.S. Immigration Policy Updates Archive

Presidential Proclamation 10052, which temporarily suspended the issuance and entry of certain categories of H-1B, H-2B, J and L nonimmigrants, expired on March 31, 2021. While there are currently no visa classification-based nonimmigrant travel bans in effect, several COVID-19 related travel bans remain in place. Additionally, U.S. embassies/consulates worldwide are experiencing reduced operations and backlogs in visa issuance. For more detailed information, please visit Fragomen Immigration Alerts.

On June 22, 2020, President Trump signed a proclamation extending and amending the Executive Order of April 22nd, 2020, which suspends entry into the U.S. for certain aliens who present a risk to the U.S. labor market following the COVID-19 coronavirus outbreak. This proclamation is effective as of June 24th, 2020 and valid through December 31st, 2020.

WHO IS IMPACTED?

This proclamation applies to the following individuals currently outside the United States who do not have a valid non-immigrant visa on the effective date of the proclamation:

• H-1B and H-2B
• L-1A and L-1B
• J-1 exchange visitors under the following DS-2019 categories: intern, trainee, teacher, camp counselor, au pair and summer work travel participants, and
• Dependent spouses and children of above visa types

If you are currently at Drexel on any of these visas, please consult with the ISSS prior to making plans to depart the U.S., if you are expected to return and resume your program or employment.

Note: it is still unclear if there is any impact on Canadian citizens, who are not required to apply for a visa to enter the U.S.

WHO IS EXEMPT?

The following individuals are exempt from the proclamation:

1. Individuals outside the U.S. in possession of a valid visa as of June 24th
2. J-1 Students, Professors, Research Scholars, Short-term Scholars
3. Individuals present in the U.S. on June 24th, including those still waiting for a change of status approval under the FY 2021 H-1B cap.

For full list of exemptions and waivers, please consult the proclamation.

WHAT HAPPENS NEXT?

The Departments of Homeland Security and Labor are charged to develop regulations to ensure that H-1B, EB-2 and EB-3 programs do not disadvantage U.S. workers. These regulations could impose more strict eligibility criteria as well as immigration compliance enforcement, such as worksite investigations. These policy updates may be forthcoming.

The ISSS will continue to closely monitor the development of this situation and will communicate when additional and appropriate information is available. Updates will be made available at drexel.edu/isss.

Sources: Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, Fragomen Immigration Alerts, and NAFSA: Association of International Educators

On December 1, 2020, the US District Court for the Northern District of California suspended the Department of Labor’s (DOL) prevailing wage increase that went into effect on October 8, 2020 and prevented implementation of the Department of Homeland Security’s (DHS) proposed H-1B changes which were set to take effect on December 7, 2020. According to the court ruling, both DOL and DHS failed to allow public comments before the rule became final.

What does this mean?

In response to federal court decisions:

• On December 3rd, the DOL reverted to the government’s Occupational Employment Statistics (OES) wage data that was in use prior to the October 8, 2020 DOL rule change. For Drexel hiring units that wish to sponsor foreign nationals for H-1B, this signals a departure from the high prevailing wage determinations that have been quoted by Drexel ISSS since October 8. Beginning December 9, 2020 Drexel University is eligible to submit labor condition applications for H-1B petitions utilizing the pre-October 8 wage data. Drexel University has until January 4, 2021 to ask DOL to review prevailing wage determinations that were issued using the higher wage data under the October 8 rule change.
• On December 4th, the DHS announced that they will fully comply with the court’s decision and confirmed that the rule set to take effect on December 7 had been rescinded. The H-1B program rules that existed prior to the DHS rule change of October 8, 2020 remains. The DHS rule of October 8 introduced stricter eligibility criteria for H-1B specialty occupations, placed new restrictions on the placement of H-1B workers at third-party worksites, and reinstated evidentiary and oversight policies for sponsoring employers.

What happens next?

While the court’s decision is immediate, a government appeal is possible. Additionally, agencies remain empowered to reissue the regulations in the remaining weeks of the Trump administration. The future of this rule remains in question.

Sources: NAFSA: Association of International Educators, Fragomen Immigration Alerts, Klasko Client Alert

On June 18, the U.S. Supreme Court ruled that the President Trump administration may not immediately proceed with its plan to end DACA: Deferred Action for Childhood Arrival program, also stating that the administration could work to remedy the procedural issues that led to the decision. For now, current DACA program participants:

• will continue maintaining their status, including their employment authorization.
• will be eligible to apply for the renewal of their status and employment authorization.

At this time, it is unclear if:

• the U.S. Citizenship and Immigration Services (USCIS) will be accepting applications for initial DACA participation, and
• current DACA participants will be able to apply for travel authorization.

Both have been suspended since 2017.

Sources: Fragomen Client Alerts, Supreme Court of the United States.

On July 28, 2020, the U.S. Department of Homeland Security (DHS) responded to the recent U.S. Supreme Court Decision that allows DACA to remain in place for now, by announcing that they will be reconsidering the program, including the possibility of entirely rescinding it in the future. In the meantime, the DHS will start implementing the following changes immediately:

• DACA renewals will be limited to one year (currently two years).
• Reject all initial requests for DACA, including associated applications for employment authorization.
• Reject new and pending requests for advanced parole (travel document) except under exceptional circumstances.

What Happens Next?

DHS did not provide any additional information about the timeline of its plan to review the DACA program or what this review may entail.

ISSS will continue to closely monitor any further development regarding the DACA program and communicate additional information when available.

On September 25, 2020, the Department of Homeland Security (DHS) published a proposed rule to eliminate the Duration of Status (D/S) for F and J visa holders and replace it with fixed periods of stay. An additional group of individuals impacted by this rule are representatives of foreign media in the U.S. on I visas. As a reminder, F-1 and J-1 visa holders and their F-2 and J-2 dependents are currently admitted into the U.S. for D/S. D/S means that they are allowed to stay in the U.S. as long as they maintain their immigration status, plus any time on post-graduation practical training (F-1 and J-1 students), plus a grace period (60 days for F visa holders and 30 days for J visa holders).

If the rule is finalized as proposed, DHS plans to make the following changes:

• Eliminate D/S. Instead of being admitted for D/S, F and J visa holders would be allowed to stay in the U.S. for up to 4 years regardless of the expected length of their program determined by their schools. Certain groups (see below) will be subject to a more limited 2-year admission. If programs are not completed in the allotted 4 or 2 years, respectively, they would be eligible to apply for an extension of stay through the United States Citizenship and Immigration Services (USCIS). Currently, extensions of programs are processed by their visa sponsor (e.g. Drexel University)
• Groups subject to a limited 2-year admission:
  • Individuals born in or are citizens of countries on the State Sponsor of Terrorism List. Countries on the list as of 9/28/2020: North Korea, Iran, Sudan, and Syria.
  • Citizens of countries with an F and J total visa overstay greater than 10% according to the most recent DHS Entry/Exit Overstay report.
  • DHS would have the discretion to limit certain groups of students enrolled in specific areas of study (e.g., nuclear science) to only 2-year admission for U.S. national interest purposes.
  • Students (F-1 only) attending institutions not accredited by an accrediting agency recognized by the Secretary of Education.
  • F-1 and J-1 visa holders sponsored by schools not fully enrolled in E-Verify.
• Shorten grace period from 60 to 30 days for F visa holders. Instead of the current period of 60 days, F visa holders will have a period of 30 days following their program end date, or the end date of their post-graduation OPT, to prepare for their departure from the U.S., transfer to another school, or apply for a change of immigration status.
• Limit ESL study participation. F-1 students in a language training program would be restricted to a lifetime aggregate of 24 months of language study, including breaks and an annual vacation.
• Limit F-1 student participation at the same educational level. Any student who has completed a program at one educational level would not be allowed to change to another program at the same level more than two additional times while in F-1 status for a total of three programs for the lifetime of the student.
• Limit F-1 participation on the reverse matriculation level. Any student who has completed a program at one educational level would be allowed to change to a lower education level one time while in F-1 status.

DHS is also proposing other changes for F-1 visa holders:

• Extend the F-1 cap-gap from October 1 to April 1. This would be an automatic extension of F-1 OPT cap- gap work authorization until April 1 of the fiscal year for which the H-1B petition is filed.
• Applicants for post-completion OPT would be able to submit their application to the USCIS 120 days before their program end date. Currently, the earliest OPT can be received by the USCIS is 90 days prior to the program end date.
• Automatic extension of employment authorization for some F-1 visa holders when a timely extension of stay is filled with the USCIS. This extension would only be applied to STEM OPT, on-campus employment, and off-campus employment based on severe economic hardship. Note: CPT and OPT applicants would not be eligible for this extension.

Additional proposed changes for J-1 visa holders:

• Extension of 240-day rule: if they file timely extension of stay applications that remain pending beyond their period of admission (four or two years), J-1 visa holders will receive an automatic extension of employment authorization for up to 240 days.
• Potential J-1 extension during H-1B cap adjudications: If H-1B cap adjudications are delayed, DHS would have an option to extend J-1 visa holders while their H-1B cap case is pending.

What happens next?

DHS will accept public comments on the rule for 30 days after publication. After the 30-day comment period is over, the DHS will review the feedback and could make revisions based on the public comments. The final rule may be quite different from the current proposed rule. It is also possible that the proposed rule will be rejected entirely.

ISSS will continue to closely monitor any further development regarding this issue and communicate additional information when available.

Sources: Fragomen Clients Alerts and NAFSA: Association of International Educators

On April 22nd, President Trump signed an Executive Order (EO) restricting the entry of certain categories of employment-based and family-based immigrants into the United States. The order applies to the following foreign nationals:

1. Individuals who are outside of the U.S. as of April 23, 2020, and
2. Do not have an immigrant visa on April 23, 2020, and
3. Do not have an official travel document other than a visa. These documents include advanced parole, an appropriate boarding foil, or a transportation letter.

While immediate family members of U.S. citizens, such as spouses and minor children, and permanent residents are exempt, the EO does apply to other relatives.

The EO does NOT affect:

1. Non-immigrant visa holders (e.g. F-1, J-1, H-1B, O-1). This includes F-1 students on CPT, OPT and STEM OPT, J-1 students on Academic Training, J-1 Scholars, etc. No F-1, J-1, or H-1B status benefits are impacted.
2. Newly admitted and confirmed students and scholars who are currently outside the U.S. and plan to apply for non-immigrant visas (F, J, TN, etc.) once U.S. consulates resume their operations.
3. Individuals with currently pending immigration benefit applications with USCIS (e.g. green cards, change of status application, etc.) or individuals currently planning to submit those types of applications, if they otherwise meet the criteria of those immigration benefits.

The EO also does NOT affect:

1. Lawful U.S. permanent residents (“green card” holders).
2. Certain individuals working in healthcare (e.g. physicians, nurses, etc.) and medical researchers helping to combat COVID-19, including their spouses and children under the age of 21.
3. EB-5 investors, individuals whose presence in the U.S. is in the national interest of the country, individuals whose entry furthers U.S. law enforcement objectives, asylum seekers, and certain other special immigrant entrants (e.g. Iraqi and Afghani nationals who have assisted the U.S. military).

The Department of Homeland Security and the Department of Labor are charged to, within 30 days, review all non-immigrant programs and recommend other measures appropriate to “stimulate the United States economy to ensure the prioritization, hiring, and employment of the United States workers.” It is unclear at this time how this will unfold and what, if any, additional implications, and/or additional restrictions could be imposed after this temporary restriction ends in 60 days.

For more detailed information, please review Client Alert: President Trump Signs Executive Order Limiting Most Inbound Immigration by Klasko Immigration Law Partners, LLP.

ISSS will continue to closely monitor the development of this situation and will communicate when additional and appropriate information is available. Updates will be made available on the ISSS website.

On December 3, 2020, a New York federal district court ordered the Department of Homeland Security (DHS) to fully restore the 2012 Deferred Action for Childhood Arrivals (DACA) program. Under the order, DHS must start accepting both initial DACA applications and renewals. Additionally, DHS must start issuing advance parole travel documents and two-year DACA and DACA Employment Authorization Document (EAD) renewals. As of December 7, DHS reinstated accepting initial DACA applications and renewals, as well as applications for DACA advance parole travel documents. For more detailed information, please consult DHS website.

Source: Fragomen Immigration Alerts

Presidential proclamation suspends entry of certain Chinese F and J Visa holders with ties to entities that support People’s Republic of China (PRC) military initiatives:

On May 29th, 2020, President Trump signed a Proclamation suspending entry into the U.S. for certain F-1 and J-1 visa holders from the People’s Republic of China (PRC) effective June 1st, 2020.

WHO IS IMPACTED?

The Proclamation applies to Chinese nationals seeking to enter the U.S. as F-1 or J-1 visa holders to pursue graduate study or conduct research, if they:

• “Receives funding, is currently employed by, studies at, or conducts research at or on behalf of...an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy',"

OR

• “has been employed by, studied at, or conducted research at or on behalf of...an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy’”

For the purposes of this proclamation, “military-civil fusion strategy means actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”

WHO IS EXEMPT?

The Proclamation does NOT affect:

1. Chinese nationals seeking to enter the U.S. to pursue undergraduate studies.
2. Chinese nationals pursuing studies or research in fields not deemed to advance China’s military-civil Fusion strategy.
3. U.S. lawful permanent residents (“green card” holders) and the spouses of U.S. citizens and permanent residents.

For a full list of exemptions, please consult the proclamation.

WHO WILL BE DETERMINING WHETHER AN INDIVIDUAL IS SUBJECT TO THE RESTRICTIONS AND HOW?

The Department of State and US embassy and consular officials will determine at the time of the visa interview if a foreign national is subject to the proclamation. The Department of State has not disclosed how determinations will be made; however, they have confirmed that the following resources could be useful in providing background information and understanding on which foreign nationals may be subject to the proclamation:

• Military-Civil Fusion and the People's Republic of China, U.S. Department of State Fact Sheet.
• Technology Transfers to the PRC Military and U.S. Countermeasures: Responding to Security Threats with New Presidential Proclamation. Arms Control and International Security Papers, Volume I, Number 9, June 5, 2020. Christopher A. Ford, Office of the Under Secretary of State for Arms Control and International Security.
• China Defence Universities Tracker, by the Australian Strategic Policy Institute (note: DOS offered this only as an example of how one country, Australia, flagged entities on a risk scale; DOS was clear that individuals should not assume that the U.S. list of entities will mirror or be based on the Australian tracker).

Similarly, the U.S. Department of Homeland Security may refuse entry to foreign nationals who they deem are subject to the proclamation. Customs and Border Protection may refuse entry to foreign nationals at US ports of entry who have been flagged under the proclamation and are ineligible for entry. Drexel ISSS will continue to receive and process I-20 and DS-2019 applications for foreign nationals.

Source: NAFSA: Association of International Education

WHAT HAPPENS TO INDIVIDUALS ALREADY IN THE U.S.?

The Secretary of State will consider whether Chinese nationals currently present in the U.S. in F-1 or J-1 immigration status, and meeting the above listed restrictions, will be impacted by this proclamation.

WHAT HAPPENS NEXT?

The Secretary of State and the Secretary of Homeland Security are charged to, within 60 days, “review non-immigrant and immigrant programs and shall recommend” additional measures that “would mitigate the risk posed by the PRC’s acquisition of sensitive U.S. technologies and intellectual property.”

The ISSS will continue to closely monitor the development of this situation and will communicate when additional and appropriate information is available. Updates will be made available at drexel.edu/isss.

Sources: Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China, Fragomen Immigration Alerts, and NAFSA: Association of International Educators.

Update: As of September 22, 2020, USCIS resumes its public rule nationwide. Adjustment of status applications submitted on or after February 24, 2020, and before October 13, 2020, will most likely receive a request for evidence for Form I-944. Effective October 13, 2020, all adjustment of status applications must be filed with Form I-944 or they will otherwise be rejected. If you think that this decision may affect your pending or future application with the USCIS, ISSS encourages you to consult with an immigration attorney.

On July 31, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced their future steps following a recent federal district court decision to temporarily bar the implementation of the U.S. Government public charge rules. The USCIS stated that they comply with the order and will not require individuals filing for certain immigration benefits (e.g. permanent residence, change of status, an extension of status) to provide information about their receipt of public benefits. This decision will be applied to applications postmarked July 29 or after. For applications received by the USCIS before July 29 and currently pending, adjudicators will not consider any information that the applicant provided relating to the public benefits.

What Does This Mean for International Students and Scholars?

We may expect that the USCIS will appeal the court decision but, nevertheless, the announcement has an immense impact on international students and scholars applying for any of the immigration benefits mentioned above.

ISSS will continue to monitor any further updates on this topic and will communicate additional information when available.

On October 6, 2020, the Department of Homeland Security (DHS) announced that they will tighten the criteria for the H-1B program by narrowing the definition of "specialty occupation" for H-1B employees. This regulation will become effective on December 7, 2020.

On October 8, 2020, the Department of Labor (DOL) issued a new regulation that significantly lifted prevailing wages for the H-1B, E-3, H-1B1, and PERM programs. This regulation is effective immediately. At the same time, the Department of Homeland Security (DHS) has announced that they will tighten the criteria for the H-1B program.

Please note:

• The DOL prevailing wage rule does not apply to prevailing wage determinations issued prior to October 8, 2020.
• Neither the DOL or DHS rules impact F-1 or J-1 students and work authorizations attached to their status (e.g. OPT, STEM OPT, CPT, Academic Training).

Please reach out to ISSS at isss@drexel.edu if you have any questions or concerns about the new regulations and their impact on you or, if you are Drexel hiring department, any of your current and future employees.

In a hearing before a federal district judge in Boston, Massachusetts, on July 14, 2020, the U.S. Immigration and Customs Enforcement (ICE) agreed to rescind the July 6 guidance and the follow-up July 7 FAQs. According to this guidance, international F-1 students were not permitted to remain in or travel to the U.S. if they are enrolled in schools and/or programs that are entirely online for the fall term. The guidance also stated that, if a school changes its operational stance mid-term and, as a result of that change, international students switch to only remote classes, they must depart the U.S. immediately or take other steps to ensure they continue maintaining their immigration status (i.e. transfer to another school providing in-person instruction).

What Happens Next?

We expect that the SEVP will either issue new guidance for fall 2020 or will make conforming revisions to guidance from March 9 and March 13, respectively. As a reminder, the March guidance gave F-1 students the flexibility to continue maintaining their immigration status as schools started shutting down in-person instruction and implemented emergency procedures that included mostly online/remote courses. Students were allowed to continue their studies full-time online/remote on a temporary basis due to the COVID-19 public health emergency. Under normal circumstances, international students can only enroll in one online (up to 3 credits) course per full-time enrollment.

Until the SEVP provides additional information, it remains unclear how this decision will impact incoming students currently outside of the U.S. The March guidance stated that those students should remain outside the country.

If you have any immediate questions or concerns, please do not hesitate to contact our Office of International Students and Scholar Services at isss@drexel.edu.

On July 24, 2020, the U.S. Immigration and Customs Enforcement ICE) agency released updated guidance offering more clarity as to what international F-1 students, both current and new incoming students, will be allowed to do to in fall 2020 in light of the continuing public health crisis due to the COVID-19 pandemic.

ICE continues to offer flexibility to current students by allowing them to remain and, if they are currently outside the U.S., return to their campuses regardless of the mode of instruction their schools will offer in the fall — in-person, hybrid, or entirely remote.

However, new incoming students currently outside of the U.S., can travel to the U.S. to start their program ONLY if they will NOT participate in 100 percent remote programs.

What Does This Mean for Drexel F-1 International Students?

Drexel's plan for fall 2020 is to feature a hybrid approach to learning, research, and student life. Classes will be taught both in-person on campus and remotely. Drexel's primary goal is to support the health and safety of students, faculty, and staff. To ensure that, as well as to fulfill the University's mission of teaching, research and service, the Office of the Registrar has designed various instructional methods. For more information on course registration, as well as descriptions, please review the Course Registration Process. The hybrid model of instruction currently offered by Drexel is temporarily permitted by ICE, but there are still certain rules that F-1 students must follow to ensure compliance with immigration regulations.

ISSS continues to closely monitor the development of this situation and will communicate additional and appropriate information via the ISSS FAQs webpage.

On July 6, 2020, the Student Exchange Visitor Program (SEVP), which is a unit within the U.S. Department of Homeland Security, issued temporary procedural guidance applying to international students on F-1 visas for the fall 2020 term. While the SEVP continues to provide some flexibility to schools and international students during the global pandemic, this newly issued fall guidance provides less flexibility than the accommodations instituted in March 2020 that applied to the spring and summer terms.

According to the Fall 2020 Guidance

• International students on F-1 visas attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall term nor will U.S. Customs and Border Protection permit these students to enter the United States. Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction, to remain in lawful status. If they do not, students may face immigration consequences that include, but are not limited to, the initiation of removal proceedings. If these students opt to continue attending their current schools, they may study remotely from outside the U.S. and maintain active SEVIS records.
• International students on F-1 visas will be allowed to attend schools adopting a hybrid model – that is, schools operating partially in-person and permitting students to take more than one remote class (or three credits) with certification from their school. Under normal circumstances, immigration regulations do not allow international students in the U.S. to take more than one online class per term. All international students on F-1 visas enrolled at Drexel fall into this category.
• International students on F-1 visas attending schools that have opted to operate in-person are bound by existing federal regulations and can take no more than one remote class (three credits) per term.
• If a school changes its operational stance mid-term, and as a result of that change, international students switch to only remote classes, those students must then depart the U.S. immediately or take other steps to ensure they continue maintaining their immigration status (i.e. transfer to another school).

What Is the Impact of This Guidance?

Given that Drexel University has adopted the hybrid model for fall 2020, the new temporary exemptions allow our students to take more than one course online. The Office of International Students and Scholars Services (ISSS) will work with the Office of the Registrar and the University’s academic advisors to ensure that all international students remain compliant.

ISSS, along with numerous ISSS offices nationwide, expect to see more guidance from the SEVP. While we continue to expect additional clarifications to the guidance, we also need to be prepared that this guidance is final and act accordingly to ensure both institutional compliance and that every student enrolled in the hybrid model in the fall is in compliance with immigration regulations. According to the guidance, WE MUST:

• By August 1, submit our fall 2020 operational plan to SEVP.
• By August 4, update and re-issue all I-20 forms to reflect our operational plan. Before we can do so, we must confirm, for each student, that the model is not entirely online, that the student is not taking an entirely online course load in the fall, and that the student is taking the minimum number of online classes required to make normal progress in their degree program. In order to successfully comply with this requirement, we will need to closely work with academic departments, the registrar's office, and others, to ensure that accurate information is transmitted to SEVIS. At this time, the estimated number of I-20s that we will have to issue is close to 3,000.
• For students presently outside of the U.S., both current and incoming, ensure that they receive updated I-20s prior to them applying for a student visa (if applicable) and re-entering the U.S.

ISSS will continue to closely monitor the development of this situation and will communicate when additional and appropriate information is available. Updates will be made available at drexel.edu/isss.

Update: On September 29, 2020, a federal judge blocked USCIS fee increases. New fees and form versions associated with the final USCIS fee rule are now on hold. ISSS will continue monitoring further developments and provide more information when available.

On August 3, 2020, the U.S. Department of Homeland Security (DHS) published a new filing fee schedule. The new schedule will take effect on October 2, and an increase average is 20%. Among others, the application fee for Optional Practical Training (OPT), work authorization for F-1 students, will increase from $410 to $550.

For the full new fee schedule, please consult the NAFSA: Association of International Educators Website.

On August 3, 2020, President Trump signed an executive order (EO) directing the Departments of Labor (DOL) and Homeland Security (DHS) to take steps to ensure that the wages and working conditions of U.S. workers are not adversely affected by H-1B workers. Additionally, the EO focuses on a review of foreign hiring by federal contractors. This will most likely lead to more H-1B compliance enforcement, such as increase in H-1B application investigations, petition denials, worksite investigations, etc. For more detailed information about this EO, please consult NAFSA: Association of International Educators and Fragomen Immigration Alerts.