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Trump administration abandons new restrictive student visa policy in face of legal actions

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US District Judge Allison D. Burroughs announced Tuesday that the Department of Homeland Security has agreed to rescind its controversial new rule that would have prohibited international students taking university courses entirely online during the COVID-19 pandemic from staying in the US. The parties in Harvard v. US Department of Homeland Security informed the court that,

US District Judge Allison D. Burroughs announced Tuesday that the Department of Homeland Security has agreed to rescind its controversial new rule that would have prohibited international students taking university courses entirely online during the COVID-19 pandemic from staying in the US.

The parties in Harvard v. US Department of Homeland Security informed the court that they came to an agreement with the government that moots the previous necessity for a temporary injunction. The exact details of the agreement remain unclear. The agreement will, however, mark a return to ICE’s March policy directive.  That directive allowed student holders of F-1 and M-1 visas to remain in the US for the duration of the COVID-19 crisis even if they are taking classes exclusively online.

 

JUST IN: California will become the first state to sue the Trump admin. over guidelines issued this week that bar international students from remaining in the U.S. if they can take classes online, state Attorney General Xavier Becerra says. https://t.co/GEYNo6z4AF

— MSNBC (@MSNBC) July 9, 2020

Reuters is also reporting that a DHS official has said that “the details of any future regulation on this issue remain under discussion,” and that “officials are still deciding whether to treat students already in the United States differently than students seeking to enter the country for the first time.” Traditionally, traveling to the US on a student visa to take only online courses has been prohibited.

Leaders of 12 Christian organizations urged the Trump administration to rescind a policy requiring international students to leave the US or transfer if their colleges hold classes entirely online this fall. https://t.co/TbF9QbSGDe

— Christianity Today (@CTmagazine) July 13, 2020

“The Trump Administration’s sudden reversal, in the face of a court challenge it was destined to lose, is a victory for these students, the colleges and universities at which they learn and the communities to which they contribute,” Feuer said.

On Monday, a coalition of 20 schools, including USC, sued the government in a bid to overturn the policy that would deprive foreign students of their United States visas if their fall classes are held solely online.

USC announced Thursday that international students who need to take an in-person class this fall to maintain their visa status and avoid being deported under the new policy will be able to enroll in the course at no cost.

 

Trump’s visa-policy reversal means thousands of area’s international students can stay in U.S. https://t.co/SIOfwHj9V7 pic.twitter.com/3HM4AbTtet

— Pittsburgh Post-Gazette (@PittsburghPG) July 15, 2020

The policy, announced July 6, had triggered a wave of distress and outrage prompting Harvard and the Massachusetts Institute of Technology to file a lawsuit, with 17 states, 26 municipalities and many other universities filing amicus briefs or taking similar action. Under the government’s policy, US Immigration and Customs Enforcement (ICE) had also required universities to notify them no later than Wednesday whether they planned to hold classes entirely online this fall.

Source: Trump administration abandons new restrictive student visa policy in face of legal actions

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The Green Card Process Through the Lens of a DMV Visit

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As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere,

As an immigration attorney, I try to provide clients with a basic, yet insightful, understanding of various aspects of a complex immigration system. It’s not always easy, but I often find analogies to something commonplace can be helpful.  One analogy I’ve found to work well to explain the green card process beyond describing its mere sequence of form filings likens the process to a visit to a Department of Motor Vehicles (DMV) office.

In my practice area of business immigration law, green card processes are mostly employment-based and involve the successive filing of a labor certification application, immigrant petition, and adjustment of status application (with the first not always required and the latter two sometimes eligible for concurrent filing). So I’ll refer to these types of filings in describing the analogy here.  But variations of the analogy may be equally applicable to other types of green card processes, such as those in which the aspiring permanent resident will apply for an immigrant visa overseas rather than adjustment of status within the United States, as well as those based on family relationships and those available to asylees and refugees.

The trappings of a visit to the DMV, no matter the state, may be familiar to you: the issuance of a waiting number determining your place in a queue, followed by a long wait for your number to be called at one of several counters to file required paperwork, followed yet again by a lengthy wait for your paperwork to be processed, and eventually – hopefully – approved without issue.  The counter at which you’ll be called, and the length of the corresponding queue (or maybe in some fortunate instances, the absence of one altogether), often depends on specific factors, such as the type of service you’re seeking.

Just as you’re issued a waiting number upon entry into a DMV office, aspiring permanent residents are issued a priority date when the first major filing in their green card process (either the labor certification application or immigrant petition) is submitted.  The priority date is the date this first filing is submitted and determines, once the immigrant petition is approved, the aspiring permanent resident’s place in any existing queue to apply for adjustment of status.

Similar to how you wait at the DMV for your number to be called to file your paperwork at the appropriate counter, aspiring permanent residents face varying wait times for their priority date to be “called” at a designated “counter” to apply for adjustment of status.  The “counter” in the green card process at which aspiring permanent residents must apply for adjustment of status is based on a combination of two main factors: their immigrant classification (which, when speaking with clients, I refer to as their “green card category”) and their country of chargeability (which I refer to as their country of birth).  Aside from some significant exceptions outside of the employment-based green card process,[1] the law limits the supply of green cards available each fiscal year.  Because the law allocates this limited supply based on a combination of both immigrant classification and country of chargeability, queues form at “counters” where the demand for green cards exceeds the available supply.  And the more severely demand exceeds supply, the longer the queue will be. This analogy helps to show why EB-2 and EB-3 immigrants born in India and China are often confronted with waits lasting many years for their priority date to be “called” at their designated counters,[2] while EB-2 and EB-3 immigrants born in most other countries often face no such queue.  In technical terms, the existence of a queue at a given “counter” means the availability of green cards associated with that counter’s classification and chargeability combination is “retrogressed.”  If there’s no queue, green card availability at that counter is “current.”

A visit to the DMV often entails a wait of several hours sitting and keeping watch of your designated counter at it serves the visitors who arrived before you until your own number is finally called.  Likewise, many aspiring permanent residents monitor the often plodding, month-to-month movement of “cut-off dates” in the Bureau of Consular Affairs’ monthly Visa Bulletins for the designated “counter” at which they must apply for adjustment of status.[3]  The Visa Bulletin for a given month contains various charts showing whether a queue for filing an adjustment of status application exists for any classification and chargeability combination, and if so, how long the queue is.  Combinations for which there is no queue are assigned a “C” notation, indicating that green card availability is current and that the adjustment of status application can thus be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming any prerequisite labor certification has been granted. Combinations for which there is a queue, and for which green card availability is thus retrogressed, are denoted by a “cut-off date,” with older dates reflecting longer queues.  Aspiring permanent residents seeking to adjust status at a “counter” at which green card availability is retrogressed can track their place in the queue by comparing their priority date with the applicable cut-off date each month.  Priority dates that fall before the applicable cut-off date in a given month are those that have been “called,” indicating that much like counters at which green card availability is current, an adjustment of status application can be filed at any time that month, including in concurrence with an immigrant petition if it has not already been approved, and assuming again that any prerequisite labor certification has been granted.

Like processing of paperwork filed at a counter at the DMV, processing of an adjustment of status application may take a long time.  But eventually – hopefully – the application is approved without issue.  And unlike a visit to the DMV, having qualified counsel during the green card process can make all the difference in one’s chance of success.

[1] For example, “immediate relatives” (spouses and children of US citizens, and parents of US citizens if the citizen is at least 21 years old) are exempt from annual numerical limits on green card availability. INA 201(b)(2)(A)(i).
[2] Aspiring permanent residents for whom the queue for applying for adjustment of status involves a wait of several years, such as EB-2 and EB-3 immigrants born in India and China, commonly change jobs or employers in the course of their wait. Such a change can require a restart of the green card process since employment-based green card processes are generally job and employer specific.  But to allow aspiring permanents residents who change jobs or employers to keep their place in queue, the law permits them to retain their priority date under certain conditions if they are the beneficiary of a previously approved EB-1, EB-2, or EB-3 immigrant petition, and likewise become the beneficiary of an approved EB-1, EB-2, or EB-3 immigrant petition based on their new job or employer. 8 CFR 204.5(e). 
[3] US Citizenship and Immigration Service also publishes monthly updates indicating whether to use the Visa Bulletin’s Dates for Filing charts or its Final Action Dates charts, to determine whether an adjustment of status application may be filed.

Source: The Green Card Process Through the Lens of a DMV Visit

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