On April 2, 2018, JMA Firm Attorney Harry J. Joe presented "Legal Challenges for Foreign Students at American Colleges and Universities" at Texas A&M University at Commerce.  The following is an outline of his presentation.  For comments or assistance, contact one of the highly qualified JMA Firm attorneys.

Through a series of Presidential Executive Orders followed by administrative agency substantive policy changes and new procedural memorandums, nonimmigrant foreign students face new challenges in seeking temporary nonimmigrant visas to enter the United States for study and for work.  These EOs and PMs implement President Trump's new Buy American, Hire American Executive Order by restricting alien access to temporary and permanent employment visas for jobs that could be performed by American workers and to end a history of well documented abuses and misuses of such visas by domestic employing entities.  These abuses and misuses were primarily associated with the B-1, H-1B and L-1B visas.

For F-1 Foreign Students, the challenges include applying for and receiving the F-1 visa, and being able to change nonimmigrant status and extending stay under the H-1B visa category  for temporary employment in the United States.  Issues relating to sufficiency of the wage offer and whether the offered position qualifies for the H-1B classification dominate adjudications.  Moreover, new hurdles exist for those applying for the H-1B visa at the Consulate in their home country.

I.   PRESIDENTIAL EXECUTIVE ORDERS

A.  Buy American, Hire American (BAHA) E.O. 13788, April 18, 2017

B.  Protecting the Nation, E.O. 13780, March 6, 2017

C. Presidential Memorandum (PM) for Enhancing Vetting, 82 Fed.Reg. 16279-81

II.  ANTI-IMMIGRATION POLICY MAKERS and ADMINISTRATORS

A.  Immigration Policy Advisors to President Trump and ICE

1.  Stephen Miller, Sr. Advisor to the President
2. Jon Feere, Sr. Advisor to ICE
3. Thomas Homan, Director, USCIS

B.  Administrative Objectives

1. Restrict availability of immigration benefits including visas;
2. Limit availability of discretion in adjudications; and
3. Develop and implement restrictive policies and procedures

III.  STATE DEPARTMENT / CONSULAR CHANGES IN VISA ISSUANCE

A.  Restrictions for E,H, L, O & P Nonimmigrant Visas

1.  Availability of US domestic workers as basis for denial
2. Consular review of USCIS approved nonimmigrant petitions for substantive eligibility, H-1B, L-1
3. Vetting of DS-160 Application for NIV at Consulate

B.  Current Intent to Return by F-1 Visa Applicants

1.  Review of Applicant's post OPT / Studies completion
2. Long term intent subject to scrutiny, especially if alien returns to home country and seeks new F-1 to reenter while H-1B visas petition is pending or before it is filed
3. Focus on ties abroad, Family Visa History

C.  Finding of Misrepresentation Based on Post Entry Conduct

1.  90 day rule replaces 30/60/90 day rule for fraud presumption
2. Post Entry Conduct that Raises Issues of Fraud
   1. Unauthorized Employment
   2. School enrollment
   3. Marriage to a USC or PR
   4. Seeking Change of Nonimmigrant Status or Adjustment of Status (discretion eliminated)

IV.  USCIS POLICY AND PROCEDURAL CHANGES

A.  H-1B Substantive and Procedural Changes

1. Suspension of premium processing for H-1B Cap
2. PM of March 31, 2017 Eliminating Entry Level Computer Programmers for Speciality Occupation for H-1B
3. Possible elimination of other Entry Level High Tech Positions from S.O. for H-1B
4. Greater Scrutiny of Positions for S.O. for H-1B
   1. Degree does not normally fit the position
   2. Degree not normally required for the position
5. Prevailing Wage Rate Level Issues
   1. Too low for job duties described
   2. Too low for required of offered position
6. USCIS FDNS site visits to increase
   1. Verify existence of employer and employment
   2. Verify who paid associated costs and fees
   3. Verify third party worksite terms and conditions
7. Increase third-party worksite documentation requirements, including documentation and verifications from the third-party worksite
   1. Issues related to who actually controls the alien's work
   2. Continued employment
8. Increase in Requests for Evidence (RFEs)