International students in F-1 visa status may not feel welcome in the U.S. by the government these days. They should know their universities and many community members do welcome them. Here are some new Trump administration policies that affect students negatively. Expect more.
- Buy American Hire American (BAHA) and the H-1B employment visa program. In April 2017 President Trump issued his Buy American Hire American Executive Order. (Note to Pres. Trump and Ivanka Trump: could you please abide by these policies also?). Regarding hiring of U.S. versus foreign workers, the Order states that the Secretaries of State, Labor, Homeland Security and the Attorney General are to propose new rules and guidance to protect the interests of United States workers in the immigration system, including through the prevention of fraud or abuse. Those Department heads are also supposed to suggest reforms to help ensure H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. As a result, the H-1B program is under attack. See #2. By the way, some reforms to the H-1B program are definitely needed – through reasonable legislative action.
- H-1B challenges. International students often follow their U.S. degree studies with U.S. employment. You can read about this in our previous post. Such employment benefits the students and the U.S. economy. Our country is in a global race for skilled employees and it makes sense to hire those who invested in a U.S. education. These days that’s not going so well. Students still qualify to work in OPT (Optional Practical Training) after they graduate. Many employers, if pleased with their work, then sponsor those employees for H-1B employment (non-green card) visas. But U.S. Immigration and Citizenship Services (USCIS) is challenging many more H-1B applications through extensive Requests for Evidence (RFEs). Note not all H-1B applicants are educated in the U.S. The questions may be legitimate but the volume of challenges indicates a clear attack on the H-1B visa program itself. This Bloomberg article explains well what’s going on.
- Need to establish non-immigrant intent: All nonimmigrant (temporary) visa applicants must prove to the consular officer that they do not intend to remain permanently in the U.S. This is called nonimmigrant intent. In August 2017 a new version of State Department guidance became effective. The new Foreign Affairs Manual language (9 FAM 402.5-5(E)(1) removes prior guidance that encouraged consular officers to take into account the “natural circumstances and conditions of being a student” when determining residence abroad for students applying for F-1 student visas. The previous guidance discussed factors that consular officers should consider when evaluating the differences in connections to a country of residence for F-1 students as compared to short-term visitors on B visas. The result is that students are to be evaluated similarly to all other temporary visa applicants, even though students are in a different life age and stage than most other such applicants. It’s too early to know how this may change the success or failure rates of F-1 applicants but clearly it is expected to make a difference or the change would not have been implemented. The new guidance states, “if you (the consular officer) are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa …”
- Extreme vetting and travel bans. Trump has announced three separate travel bans since January 2017, aimed primarily at nationals of Muslim-majority countries. The courts have largely stopped each ban from going into effect. However, the State Department has begun “extreme vetting” of applicants for visas which is severely restricting applicants from some of those same targeted countries. U.S. embassies/consulates are collecting additional information from “visa applicants whose circumstances suggest a need for further scrutiny” by requiring them to submit additional information on Form DS-5535. Take a look at the form – it asks for employment and address history for the past 15 years, all social media handles for the past 5 years, and much more. Consular officers are using this information to vet applicants for potential visa ineligibilities under existing U.S. law. According to the State Department: “There are no visa ineligibilities under U.S. law on the basis of race, religion, ethnicity, national origin, political views, gender, or sexual orientation.” Unfortunately, it’s hard to believe this, given the focus on those from Muslim-majority countries. Applicants can complete this information and take it to their interview abroad to save time.
- DACA . As of November 6, 2017 there is no long-term agreement to allow DACA students (“Dreamers”) to remain in the US. No new or renewal DACA applications can be submitted at this time.
- Prudential visa revocations for DUI. Drinking and driving can cost you your U.S. student or employment visa. See our prior post for details. There have now been reports of ICE starting removal (deportation) proceedings for DUI arrests in the United States if the visa has been revoked. However, the State Department says this should not be occurring. They state a prudential revocation only becomes effective after the foreign national departs the US and wants to re-enter. For example, a university student can normally enter the US on the same visa for several years if s/he maintains status throughout her studies but she will not be able to re-enter if her visa has been prudentially revoked.
Finally, on a more general note, have you wondered why there are so many international graduate students in U.S. STEM (Science Technology Engineering & Mathematics) programs? Where are the U.S. students in those masters and Ph.D. programs? Turns out U.S. students go into technology careers with U.S. companies more easily with just a bachelors degree so they don’t generally feel the need to spend money and time on higher degrees. This interesting New York Times article explains this well.
