Written by William R. Hummel, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
International students in the United States are facing a number of evolving issues and challenges that could potentially affect their ability to study, work, and remain in the country.
Those current issues include Immigration and Customs Enforcement (ICE) terminating the F-1 status via the Student and Exchange Visitor Program (SEVIS) of a significant number of international students at U.S. colleges and universities; the Department of Homeland Security’s increased scrutiny of social media usage by foreign nationals; as well as potentially missing out on the latest H-1B cap lottery.
This white paper reviews the recent changes, explains how they impact F-1 visa holders and recent graduates, and provides an overview of some alternative strategies and pathways if an H-1B cap subject visa is unavailable for a foreign national.
Revocation of visas under Trump administration
There have been hundreds, if not thousands, of F-1 international students who have had their status revoked by ICE as extensively reported in major news outlets.
Locally, reports indicate that at least six students from the University of North Carolina at Chapel Hill, six from the University of North Carolina at Charlotte, two from the University of North Carolina at Greensboro, two from N.C. State, and one from Appalachian State have had their visas rescinded, while “several” have had their visas revoked at the University of South Carolina.
The government has given little to no indication as to why these students’ visas have been revoked. Anecdotally, some have had previous minor encounters with law enforcement, such as parking tickets or other similar offenses, while other revocations may have reportedly been related to “activism and participation in student-led protests,” according to Inside Higher Ed.
Unfortunately, these students have limited options to challenge the revocation of their visa. The recourse available for these students include:
- Leaving the United States: Students whose status has been cancelled can leave the country and attempt to apply for a new visa at a U.S. embassy or consulate in their home nation. But, there are no guarantees that a new visa will be approved by the embassy or consulate. In that case, the student would be outside the United States with no option for returning.
- Filing for reinstatement of F-1 status: Students may file for reinstatement of their F-1 status from United States Citizenship and Immigration Services (USCIS). This strategy, however, has a narrow path to success, as it requires a government agency, related to the one that revoked the F-1 visa, to re-instate the foreign national’s F-1 student status. Filing for reinstatement is also a lengthy process, as it could take six to eight months for a resolution, and does not alone provide the foreign national student deportation protection.
- Federal Litigation: Students can file a lawsuit against the federal government, arguing that the SEVIS termination did not follow the proper regulatory procedure , and that the cancellation of their status was a violation of due process. Numerous international students have already sued the federal government over the cancellation of their status, including in federal courts in Atlanta, New Hampshire, Michigan and more. Additionally, 19 states, including New York, California and Arizona, filed a joint amicus brief in mid-April “asking a federal judge to stop the Trump administration from cancelling hundreds of international student visas,” as detailed by USA Today. The idea of filing a lawsuit against the United States can be a daunting process and is overwhelming for many people, and reasonably so. Yet, challenging the government’s SEVIS termination via a lawsuit can be a viable and effective strategy. The attorneys at Garfinkel Immigration Law Firm have and can challenge government decisions via lawsuits filed in federal court. Learn more about our litigation practice here.
Some universities have allowed students to continue attending classes while they challenge the revocation of their status, while others have not. Students should check with their specific university to confirm its policies.
Foreign nationals who have had their F-1 status revoked should consider consulting with experienced immigration counsel to determine if litigation, or another strategy, is right for them.
Social media review
On a similar note, the Department of Homeland Security announced in early April it would begin screening foreign nationals’ social media accounts for evidence of antisemitism. There have also been reports of other enhanced social media screenings of foreign nationals.
While this screening applies to all foreign nationals, students have been a specific target of this policy. F-1 students should be aware of this new policy from DHS and be very cognizant about their social media use at this time.
This social media screening, as well as other extreme vetting policies implemented by the Trump administration, could lead to longer processing and visa wait times, as well as increased delays for USCIS and consular appointments. Foreign national students should plan accordingly for any potential longer wait times.
Not selected in H-1B cap-lottery
Each year, many highly skilled international graduates from U.S. universities find themselves in the same position: Qualified and ready to work for a U.S. employer, but without a clear immigration path after not being selected in the H-1B cap lottery.
But not being selected in the H-1B lottery does not necessarily mean the end of a foreign national’s journey in the U.S., as there are some alternatives that can extend their stay and allow them to work, depending on their individual circumstances.
For example, some F-1 students can:
Check alternative nonimmigrant visa options
F-1 students who are not selected in the H-1B cap lottery should first consult with experienced immigration counsel to determine if there are any other nonimmigrant work visa options available for them.
Alternative visa options that could be available for F-1 students include:
O-1 extraordinary ability visa: This classification is reserved for foreign nationals who are highly talented or have reached a notable level of acclaim in the fields of science, art, education, business or athletics. In some circumstances, F-1 students can demonstrate that they have sustained national or international acclaim and that their achievements have been recognized in their field through extensive documentation.
TN visas are available for qualified Canadian and Mexican citizens to enter into the United States to engage in business activities at a professional level. There is no limit on the number of visas issued in this classification each year. The category allows for an initial entry of up to three years, with extensions available in three-year increments. Similar visas are available for citizens of Australia (E-3 visa), as well as Chile and Singapore (H-1B1).
The E-1 (treaty trader) and E-2 (treaty investor) visas are issued pursuant to bilateral treaties between the United States and various other countries, including many Western European nations. These treaties allow a foreign national to live and work in the United States for an employer sharing their nationality in certain specific capacities.
“Cap-exempt” employers: Foreign nationals who miss out on the H-1B cap lottery could attempt to find employment with a “cap-exempt” institution. In order to qualify for cap-exemption, the organization must show it is designated as 501(c)(3) not-for-profit, and prove it has a written affiliation with a college or university. Cap-exempt H-1B petitions can be filed at any time and are not subject to the numerical cap.
Return to school
F-1 students not selected in the H-1B cap lottery could consider enrolling in a new course of study at a U.S. college or university. This could include a graduate or PhD program, or in some cases an alternative B.A. or B.S. major.
In some circumstances, re-enrolling at a U.S. college or university grants the foreign national new eligibility for Curricular Practical Training (CPT) and/or Optional Practical Training (OPT). This will allow the foreign national to be employed and then attempt to either enter the H-1B lottery again, or apply for a different nonimmigrant or immigrant visa following the completion of their new program.
Consider an international assignment
Students not selected in the lottery and working for global companies with international operations could also consider taking an international assignment abroad with a related entity to their U.S. employer. This could open a pathway, in as little as one year, to return to the U.S. on an L-1 intracompany transfer visa.
As an example, an engineering student could accept a job with a U.S. company’s affiliate in Europe. Then, after at least one year working for that affiliate company in Europe, that foreign national could petition for an L-1 visa to come back to work at the company’s office in the United States.
Conclusion
The landscape for international students in the U.S. continues to change, especially under the current administration.
The revocation of some foreign nationals’ F-1 status within SEVIS , increased scrutiny on social media usage, and potentially missing out on the H-1B cap lottery are just some of the issues currently facing international students and recent graduates.
It is important that F-1 students review current policies and available pathways when making decisions related to academic and professional plans. They should consider consulting with experienced immigration counsel to examine the best immigration options specific to their individual circumstances.