The Associated Press is reporting that US embassies and consulates around the globe have been instructed to limit the validity period of F-1 visas issued to Chinese graduate students studying in fields such as robotics, aviation and high-tech manufacturing. The new policy requires that visas issued to such students are only valid for one year, where Chinese students are normally issued visas valid for up to five years. The policy is reportedly taking effect on June 11, 2018. There are more than 300,000 Chinese citizens studying in the United States – nearly one-third of all international students.

According to the report, the policy also requires that some Chinese employees of certain US companies will also be subject to special clearances resulting in visa processing delays of up to several months. The US Department of Commerce maintains the list of targeted companies, which is not available to the public.

Who is affected and what should they do?

This policy affects Chinese citizens who are applying for visas at US embassies and consulates – specifically, graduate students in certain fields, and some employees of companies that have been targeted for scrutiny by the US Department of Commerce. In addition, any Chinese citizen applying for a visa, who studies or works in a field that the US government might consider sensitive to national security or the economy, should be attentive to this policy and its possible expansion in the coming months. These individuals may want to stay in close contact with their school or employer to discuss their concerns and plan accordingly.

Hunton Andrews Kurth typically does not post about topics that are not officially announced, and it is important to note that this information is based on a single news report by the Associated Press. We will continue to monitor this issue and share relevant and credible information as it becomes available.

In a policy memorandum dated May 10, 2018, the United States Citizenship and Immigration and Services (“USCIS”) provided new guidance to its officers and adjudicators on calculating unlawful presence for nonimmigrants in F, M, and J status. This policy memorandum, which becomes effective on August 9, 2018, represents a dramatic shift in long-standing USCIS policy.

The date unlawful status begins to accrue is extremely important as this date is a linchpin in determining when the 3-year and 10-year bars of reentry may apply.  Generally, unlawful status for more than 180 days, but less than 1 year, triggers a 3 year bar of reentry, while unlawful status for more than 1 year triggers a 10 year bar. Waivers of the bars may be available if certain requirements are met, including in some cases extreme hardship to a U.S. or permanent resident spouse or parent.

The new policy specifies that F, M, or J nonimmigrants who failed to maintain their status (for example by no longer pursuing a full-course of study, no longer engaging in an approved training program or activity, or engaging in unauthorized employment) before August 9, 2018, will start accruing unlawful status on August 9, 2018, unless the nonimmigrant already starting accruing unlawful status on the earliest of the following:

  • The day after a Department of Homeland Security (DHS) denial of an immigration benefit, if DHS determines that the nonimmigrant violated his or her nonimmigrant status while adjudicating that immigration benefit;
  • The day after the nonimmigrant’s Form I-94 expires, if the F, M, J nonimmigrant was admitted until a certain date; or
  • The day after an immigration judge or the Board of Immigration Appeals ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

F, M, or J nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, begin accruing unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or the Board of Immigration Appeals orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The new policy is a dramatic change in how USCIS previously calculated unlawful presence.  Under the prior policy, unlawful presence for those in admitted F, M,  or J status for the duration of their status (D/S) started accruing only on the day after:

  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.

F, M, or J nonimmigrants who were admitted until a specific date, instead of D/S, accrued unlawful presence only on the day after:

  • Their Form I-94 expired;
  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This new policy also affects the immigration status of dependent family members as the validity of their status is dependent on the principal maintaining his or her status.

To review the text of USCIS’ new policy memorandum, please click here.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

On Friday, March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that premium processing service will be suspended for all H-1B petitions received on or after April 3, 2017. This suspension may remain in place for up to 6 months.
Continue Reading USCIS To Temporarily Suspend Premium Processing for All H-1B Petitions

The President’s Executive Order, commonly called the “travel ban”, has raised many questions.  We answer the most frequently asked questions below, and will update them as additional information becomes available.

I am from one of the named countries and am outside of the United States.  Can I apply for a nonimmigrant (temporary) or immigrant (permanent) visa at a US consulate?

On January 27, 2017, the U.S. Department of State (DOS) provisionally revoked most valid nonimmigrant and immigrant visas issued to nationals from the seven countries subject to the travel ban. Certain diplomatic and other visa categories are exempt from this action. This move was largely symbolic since individuals subject to the travel ban are not permitted to enter the United States. However, if and when the travel ban is lifted, individuals from the listed countries would most likely need to reapply to a U.S. consulate abroad for a new visa before they could travel to the United States.

Continue Reading Travel Ban FAQs

The fast pace of immigration developments under the new Trump administration continues. The following are some of the issues that are most important to individuals and businesses in the United States: Continue Reading DHS Clarifies Policies Affecting Travelers and Applicants, As Details of Possible New Executive Orders Emerge