University of Iowa

Important Immigration Updates - New Risks for Fall 2018: Denials, Deportation, and Unlawful Presence

This content was previously emailed to all University of Iowa international students on F-1 and J-1 visas.

August 23, 2018

 

Hello everyone, this is Lee from International Student and Scholar Services.  I’m sending this message to all of our students in F-1 and J-1 status, to welcome those who are new and to welcome back returning students.

This message is going to be a somber one, as I’m going to cover some significant changes regarding student immigration rules and practices.  It is going to be crucial that you understand this content, as doing anything to compromise your legal status this year could result in much more serious consequences.  And yes, it will be long, because there’s unfortunately a lot to cover.  No matter how busy you are, you each need to read and understand this information.  If something is not clear or you have questions, then you may email me.

There are three sections in this email:

  • Potential Increase in Denials of OPT, STEM OPT, Change of Status, and Reinstatement Applications
  • Notice to Appear/Initiating Removal Proceedings (“Being Deported”)
  • Accrual of Unlawful Presence

 

 

Potential Increase in Denials of OPT, STEM OPT, Change of Status, and Reinstatement Applications

A new policy will take effect with U.S. Citizenship and Immigration Services (USCIS) on September 11, 2018.  USCIS is the branch of the Department of Homeland Security that processes certain types of immigration applications.  For F-1 and J-1 students these are most commonly the applications for OPT, STEM OPT, reinstatement, and the I-539 change of status application.

The new policy enables USCIS adjudicators to have more discretion is denying an application if anything is missing, incomplete, or they feel does not otherwise meet the USCIS criteria for that application.

In the past, if USCIS saw something amiss in an application and required additional documentation, or had a question about a student’s situation, they might commonly issue what is called a Request for Evidence (RFE) letter, asking for additional information to be submitted before a decision would be made.  Moving forward, there no longer is any requirement or encouragement for the RFE to be issued, and instead the USCIS adjudicator has the ability to issue an immediate denial.  They are technically required to provide a written explanation of the denial.  However, whether a denial is justified or not, the act could have severe consequences for some individuals, and a quick or easy remedy may not be available.

Hence it will be more important than ever to ensure that complete and fully accurate information is being provided when submitting one of these applications.  In the past, ISSS has reviewed the application material if students wished us to do so, but did not require it.  From now on, we will take a more active and mandatory role and require that certain documentation be fully completed before we will issue a new I-20 for OPT or for a change of status.  While it may seem like it is needlessly restrictive or will take extra time, our experience is that far too often, many students are not careful and leave something out when mailing an application, or forget to sign a document, etc.  Such things could now result in an immediate denial by USCIS, so our updated processes are intended to help you make sure you are doing everything necessary.

We will also ask that students who receive a denial of any application contact us immediately.  We will not be aware when this happens unless you inform us.  There may not be anything we can do, but we can recommend knowledgeable immigration attorneys if necessary, and will also report the denials to our international educators organization, who will be tracking such incidents and challenging USCIS if there are irregularities.

You may read more about this policy on the website of NAFSA:  Association of International Educators.

The “takeaway” here:  Never submit an application to USCIS that has not been checked and double-checked, and that is not fully complete and accurate.

 

 

Notice to Appear/Initiating Removal Proceedings (“Being Deported”)

Relating to the above, there may also be a higher risk of those who are denied such applications by USCIS being issued a “Notice to Appear” or “NTA.”  The NTA is a document that requires you to appear before an immigration judge, and initiates the process to be removed from the U.S. – i.e. be “deported.”

While the possibility of this happening has always existed, new guidance was issued this summer that can potentially put some international students at risk of experiencing this:

  • The NTA may be issued in situations where an immigration application (ex. OPT, STEM OPT, reinstatement, change of status) has been denied and the person is already out of status on the date of denial. The common example here would be cases of reinstatement applications.  As NAFSA:  Association of International Educators illustrates:
    • Example:  “F-1 reinstatement denied. Since a reinstatement applicant admits to a status violation, the applicant would find him or herself out of status after a denial. In the past, this applicant would probably have received an instruction in the denial notice to depart immediately, but it was unlikely that USCIS would then institute removal proceedings. Under the new policy, the likelihood is higher that USCIS would issue an NTA.”

 

  • The NTA has a lower chance of being issued in other circumstances, but still is possible. This would include situations where long processing times cause a student’s status to run out while waiting for the decision.  Again, more examples from NAFSA:
    • “F-1 student applies for economic hardship work authorization. USCIS denies the application because they did not agree that the hardship was beyond the student’s control or unforeseen. If the student is otherwise maintaining F-1 status (full course of study, valid I-20, etc.), there is no status violation involved in the benefit denial, so an NTA would not be issued under the new policy.”
    • “F-1 student applies for post-completion OPT 30 days before program end date, but more than 30 days after the DSO’s OPT recommendation, i.e., missing that filing deadline. 15 days after the student’s program end date, USCIS denies the OPT because the student did not timely file the OPT application. The student would still have 45 days left in her grace period, and so should not receive an NTA, and would be eligible to file another OPT application.”
    • “Same scenario as above, but USCIS doesn’t issue the denial until 75 days after the student’s program end date (i.e., beyond the 60-day grace period). USCIS could find that the student is not in status at the time of the denial, and issue an NTA.” (Technically the “grace period” is considered extended while an OPT application is pending, even if it takes longer than 60 days after graduation, but we cannot count on USCIS following that.)

 

The “takeaway” here:  A denial of some applications to USCIS (commonly OPT, STEM OPT, reinstatement, change of status) may carry increased risk of being placed in removal proceeding (i.e. deportation).  Reinstatement applications are particularly at risk. 

 

 

Accrual of Unlawful Presence

On August 9, 2018, a new rule was put in place by the Department of Homeland Security (DHS) regarding what is called “unlawful presence” and applies to those in F, J, or M status as well as their dependents.  Very basically, it means that DHS will begin counting and tracking “unlawful presence” if anyone with F, J, or M status does anything, intentionally or unintentionally, to violate the terms of their status or to “lose” their legal status.  This has the potential to then lead to “bars,” or restrictions, on returning to the U.S. in any manner for three years, ten years, or even permanently.

I am not going to reproduce a full description of this here, as I already wrote a detailed document specifically on this subject.  Please read that document.

However, I am going to copy here a list of some of the common ways international students lose their status, which can then lead to the start of unlawful presence. 

  • Students academically dismissed after a semester ends, who do not either transfer to a new US school in a timely way or who do not leave the US by the deadline provided by ISSS.
    • How to avoid this?  Students know when they are not doing well academically.  Students are almost always given at least one semester on academic probation to improve grades.  If you have not been doing well, or more obviously, you are not going to your classes, you can expect you will have a low GPA at the end of the semester and may then be academically dismissed for one year.  Don’t take the common approach and just try to avoid your email, so you won’t have to see the notices from your college and ISSS about this – that excuse won’t save your status.  Prepare ahead of time, and either plan to leave the U.S. within the deadline provided by ISSS, or apply and transfer to another school in the U.S. such as Kirkwood Community College, where you can continue your studies for the year and even transfer some credit back to your UI degree program.  Ignoring/avoiding is going to get you in a lot more trouble than ever before.
  • Students who fail to report/update the local residential address in MyUI (this prevents ISSS from submitting a required report to SEVIS that you are registered each fall/spring, and eventually leads to automated termination of the SEVIS record.
    • How to avoid this?
    • Check MyUI to see what your current address is and make sure it is your current U.S. address (no departmental addresses, no post office box addresses).  Those who live in campus residence halls should be aware that when the semester ends and you move out, UI Housing converts your residence hall address back to the last address entered there, which is often your address in your home country.  You need to be proactive to get this information updated quickly.
    • iHawk will often send an alert email to students IF it detects that you do not have a valid U.S. address listed in MyUI.  This alert does not always work depending on certain situations, so you should not rely only on this – the only way to be sure is to log in to MyUI.  But if you are getting an email alert that says, “Immigration Record Error!” DO NOT IGNORE IT and contact ISSS immediately.  The number of students who ignore this is astounding, and some have ended up losing their status because they ignored or took too long to respond so they could fix the problem.  The iHawk system keeps a record of every week that alert goes out, so we sometimes can see that some students have received the alert weekly for several months.  Yet still ignored it.  Don’t.
  • Students who enroll below full-time without the legally required ISSS approval and do not fix the issue by the deadline provided by ISSS
    • How to avoid this?  First of all, be aware of the total number of semester hours you are enrolled in.  You know undergrad students must take 12 s.h., grad/professional students take 9 s.h.  There may be some exceptions, and those are defined on this website.
    • There are various email alerts that exist for this, but they will look something like “Alert: F-1 Undergraduate Under-Enrolled.”  Please read these and follow the instructions.  There may also be alerts that deal with online courses, since there are restrictions on the number of online courses that can count toward full-time enrollment.  Again, this alert filter is not perfect due to the way some courses are reflected in the MyUI system.  And sometimes they are sent to students who really should not have received the alert.  ALWAYS CONTACT ISSS TO BE SURE.  If there was an error and the alert does not apply to you, we’ll be able to quickly see this.  But DO NOT IGNORE IT.
  • Students who do not extend an expiring I-20 or DS-2019 before the end date
    • How to avoid this?  Be aware of your document end date.
    • The iHawk system will send an email alert in many cases when it detects an I-20 or DS-2019 end date for a current semester.  We are increasing the number of alerts to three, with the first one coming approximately 90 days before the document expires.
  • Students who voluntarily withdraw while a semester is in session but who do not leave the US by the established deadline (15 days)
    • How to avoid this?  Leave the U.S. within 15 days of withdrawing.  No exceptions.  Don’t try to say you could not get an airline ticket out in time, as that is not going to save you from being out of status.
  • Students who are withdrawn by the school for misconduct or other violations and do not leave the US
    • How to avoid this?  Leave the U.S. by the deadline the university instructs you.
  • Students who work without required authorization
    • How to avoid this?  Do not work without authorization.  This most commonly applies to off-campus jobs.  Working in a restaurant, a bubble tea shop, for a friend’s business, etc. are not acceptable.  The only way you know you are working legally if you are employed by someone other than the University of Iowa is if you have authorization from ISSS for CPT or OPT (for F-1 students) or Academic Training (for J-1 students).
  • Students who graduate, or who complete a period of post-graduation OPT or Academic Training, and then do not leave the US by the established deadline, transfer to a new school/program, or change to another immigration status in a timely way (F-1 students get a grace period of 60 days following graduation or the end of OPT; J-1 students get a grace period of 30 days following graduation or the end of Academic Training)
    • How to avoid this?  Leave by the established deadline.

 

The “takeaway” here:  Avoid losing your legal status in the first place.  Know the rules for your status.  Know the end date of your I-20 or DS-2019.  Always read emails and alerts from ISSS and follow up on them.  At the same time, do not rely solely on ISSS alerts – the electronic system is not perfect, and some alerts cannot be generated for all potential problems; they are a courtesy but should not be considered to be the only thing you have to watch for.  Finally, do not rely on advice from your friends, your professors, the secretaries in your department, your lab supervisors, or even the internet.  ASK ISSS!

 

 

A Final Word

Please take these warnings seriously, and contact ISSS with any questions or uncertainties you have.

Here are some real “reasons” we receive from students when they lose their status:  “I forgot.”  “I got really busy, I have too much else to do.”  “I don’t read my UI email.”  “I just delete the messages from ISSS.”  “My friends told me I can ignore this.”  “Nobody told me anything about this.” (despite numerous ISSS emails or iHawk alerts, covering information in orientation, etc.)  The reality is none of those will save you from serious consequences if you should lose your status and find yourself in any of the situations I’ve mentioned here.

Please be attentive, tuned in, and in touch with ISSS.

 

Lee Seedorff
Senior Associate Director
International Student and Scholar Services
The University of Iowa
Email