You may recall that several colleges had filed a lawsuit in October 2018 against DHS arguing that the August 9th Unlawful Presence memo was unlawful because it did not go through the required regulatory process, the policy change is arbitrary and capricious, it violates the 1996 statute that created the concept of unlawful presence, and violates Due Process.
The colleges argued that the Unlawful Presence memo “is intentionally designed to impose tens of thousands of reentry bars on F, J, and M visa holders each year” and will result in three- or ten-year bars of “untold numbers of international students and exchange visitors acting in good faith.” DHS had filed a Motion to Dismiss the lawsuit on January 10, 2019. DHS argued that the colleges do not have standing to bring a lawsuit (ie the colleges have not identified how they have been harmed by the policy) and that it is too soon to bring a lawsuit because no individuals named in the lawsuit have been harmed yet.
The colleges also filed a Motion for Preliminary Injunction on December 14, 2018 requesting that the memo should be suspended while the litigation is pending.
Today, the Court found that the colleges are likely to succeed on their claims that the August 9th Unlawful Presence Memorandum was promulgated in violation of regulatory procedures, and that the Policy Memorandum conflicts with the Immigration & Nationality Act. The Court therefore concluded that, under the circumstances of the case, a nationwide preliminary injunction is appropriate.
This means that DHS is blocked from enforcing the August 9th Unlawful Presence Memo nationwide, pending resolution of this lawsuit.
BACKGROUND:
The August 9, 2018 Policy Memorandum changed how USCIS calculates unlawful presence for F-1 students in “duration of status.” This is important because unlawful presence can eventually lead to “inadmissibility,” meaning the individual can be barred from entering or remaining in the United States.
Prior to August 9, 2018, in the event that USCIS formally found a violation of F-1 status, the student would not begin accruing unlawful presence until the day after the decision was made.
Under this new memo which is currently blocked from being enforced, if an F-1 student is found by DHS to have failed to maintain status, he or she will begin accruing unlawful presence on the day after he or she engaged in the unauthorized activity that caused the status violation:
In other words, the memo had required unlawful presence to be calculated retroactively.
With this injunction, we revert back to the previous rules which had been in operation for over 20 years. That is, in the event that USCIS formally finds a violation of F-1 status, the student would only begin accruing unlawful presence the day after the decision is made.
~ImmigrationGirl
ARAVIND RAVIKUMAR
July 2, 2019
Hi Emily,
My STEM OPT is ending next year beginning and I have applied for another masters. The new university is asking for a SEVIS transfer form. If i submit that now would that mean that I am terminating my current STEM OPT.
Thanks,
Aravind.
A_immi
May 29, 2019
Hi,
My OPT ends on Feb 12th, 2020 and my H1 was not picked in the lottery this time (it was the 3rd attempt). I was planning to leave the US in December for a vacation and come back by Jan 6th, 2020. Will there be a problem for my re-entry? Also, my employer will file again for me in April 2020. How many days after my opt can I stay in the US without accruing unlawful presence?
Thanks!
ImmigrationGirl
May 29, 2019
It is possible that you may have issues returning. You need to be able to convince the officer at the port of entry that your intention is to study consistent with the F-1 visa and that you intend to return to your home country upon the completion of your program.
There is a 60 day grace period following the expiration of your OPT in which you do not accrue unlawful presence. If your H-1B requests a change of status and is selected, your F-1 status is extended under the cap gap until September 30th, but you cannot work.
A_immi
May 29, 2019
Thanks for your reply. Do you suggest any documents that can help me convince the port of entry officer that I will return back after my OPT ends? For example, some letter from the employer/ Return ticket to my home country or something else?
Neomi
May 14, 2019
hello IG,
When do you foresee any movement on EB2 category?
ImmigrationGirl
May 14, 2019
For India, I don’t expect it to move beyond June 1, 2009 between now and September 2019.
Alex
May 13, 2019
Hi Emily,
Thanks for the informative posts. I have two questions if you dont mind.
1- I studied for a school for my masters and I got my CPT and OPT fromthem but the school lost its accreditation and decided to shut down after 60 years in service. Does this affect my H-1B approval ?
2- I joined a school for my doctor’s degree and they give CPT from day one but its accredited. Does that affect my h-1b approval ?
Thanks ,
JustCurious
May 13, 2019
Just curious:
if a student has not used his full-time or part-time CPT during his first Masters but used his/her OPT and STEMOPT, will he/she be able to use Full-time Day 1 CPT for 11 months 29 days?
ImmigrationGirl
May 13, 2019
for a second Master’s USCIS would likely say no
AM
May 10, 2019
Hey Emily, when you say people were denied admission at POE, do youe mean when they were trying to come back on H1b or when they were trying to come back on f1?
Tom
May 7, 2019
Hi emily,
I had a chat with one of the college who offers Day-1 CPT. I was looking for concrete answers from these people, and see their responses below:
PS: I edited few areas to hide person and University names, but context is unedited.
____________________________________________
TOM:
i have one more question. the ICE pages says
“A student may be authorized 12 months of practical training, and becomes eligible for another 12 months of practical training when he or she changes to a higher educational level.”
how is this authorized if i am doing CPT on same degree level?
University Response:
You can work CPT for 11 months and 29 days full time, then after that you would have to drop down to part time to still be eligible for OPT after completing your degree. Or if you are not interested in OPT, you can work CPT full time for the complete duration of your program (typically 5 semesters for an Executive Masters program)
TOM:
I think you still didn’t answer my question.
i don’t care if its OPT or CPT, they both are practical training.
According to the ICE website, How is CPT authorized at your college for a same degree level?
University Response:
CPT is part of our Executive programs so we are able to allow students to work throughout the program. In each semester of our Executive programs you will be required to take an INTR 599 course which is how practical training is combined into our programs and this allows you to work CPT while in the program.
________________________________________
CAN THEY BE ANYMORE SHADY?
I understand that USCIS is not calling Day-1 CPT is illegal anywhere in their websites, and also THEY ARE NOT SAYING THAT DAY 1 CPT IS LEGAL.
I am not accusing anyone of anything here, but we should understand what we are getting into before we do it.
If day 1 cpt’s are authorized, why is USCIS or any other official immigration websites are not mentioning about it as they are doing it for OPT and STEM?
So i would like to conclude saying Day 1 CPT might not be illegal in few personal perspectives, but it is definitely unauthorized.
ImmigrationGirl
May 7, 2019
Thank you for sharing, it definitely doesn’t explain how they can offer it at the same degree level
VJ
May 7, 2019
I don’t think Day 1 CPT is illegal even at the same degree level if the course really demands it. What the university uses as the reason and why people opt for these programs (education vs. another shot at h1b/remaining employed etc) is what is shady and causing extra scrutiny.
If more people started opting for PhDs to remain in the US, who knows, that may create a need for more
NA
May 10, 2019
From the SEVP handbook, 8 CFR 214.2(f)(10)(i)
“(i) Curricular practical training. An F-1 student may be authorized by the DSO to participate in a curricular practical training program that is an integral part of an established curriculum. Curricular practical training is defined to be alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training. Exceptions to the one academic year requirement are provided for students enrolled in graduate studies that require immediate participation in curricular practical training. A request for authorization for curricular practical training must be made to the DSO. A student may begin curricular practical training only after receiving his or her Form I-20 with the DSO endorsement.”
They say working more than 1 year; you loose OPT but never said working more than 1 year CPT is NOT possible at all times. I have seen people received RFE for exact same question you have asked and Attorneys have responded with these quotes and with the proof that these CPT’s were part of the curriculum – most of them got their RFE’s approved. This shows USCIS they themselves are not clear on how to interpret these regulations. Just rewrite them.
Note: Even I don’t support use of Day1 CPT. This is from SEVP Portal.
NA
May 10, 2019
Of course, as Emily mentioned, Some them had issues denied/ sent back. It comes down to ones own interpretation.
TruthisBitter
May 6, 2019
I have seen lot of people are creating big hype of Day1 CPT like in last August all those seminars and stuff. Noone has face any issue because of day1 CPT. If you think that I am wrong just show me the documents that clearly states that Day1 CPT is illegal(I am agree that it must be related to your coursework).
It is very easy for the people to comment like you should leave the country and etc who are not in this situation.
We are not here to spend 50000$ for education and go back without getting those paid back and earn some.
Do not create the hype without proof.
ImmigrationGirl
May 6, 2019
The proof would be the change of status denials that people received. Oh, and the people who were denied admission at the port of entry.
WonderingAloud
May 6, 2019
well said Emily!
Genuine Applicant
May 7, 2019
Well said Emily. Sooner or later they will find us.
Kalyan
May 6, 2019
Irrespective of the hype and proofs, Day 1 CPT is clearly abusing the F1 visa. Abusing immigration will eventually lead to strict laws.
Kalyan
May 7, 2019
The whole point of F1 visa is to study. NOT WORK. If you want to work get a H1B.
TruthIsBitter
May 7, 2019
Dude then you need to ask USCIS to remove the concept of practical training.
BE WISE
May 6, 2019
And since when does USCIS need any white paper proof before they can deny your COS or stop you at any port of entry? The only written or verbal response you will get is you violated F-1 (PERIOD). Trust me it’s not worth it.
I get it when your back is against the wall, you try to seek the only option left and what others are doing but the problem is 50% of USCIS looks at it as a loophole and assumes direct violation. So it’s your choice if you want to gamble with the 50/50 odds. But be prepared for the ramifications. No piece of paper or attorney will be able to help you there.
Kalyan
May 6, 2019
Well-put.
BE WISE
May 6, 2019
I’m glad that your trip was hurdle free. And as I stated its a huge risk but people take it, some make it and some don’t. There are many people out there who have got impacted and I know some of them personally. COS gets rejected for sure. Now we are not here to provide you evidence and documents. This is a blog and everyone is entitled to share their opinion and that’s what we are doing.
You keep stressing about “there is no such rule”. But people who got rejected for COS only got one answer in their rejection notice that you did a violation of your F-1 visa. Neither they were given any proof or explanations for rejection, nor will other people out there who have done violation.
Rest is up to the individual who is willing to go forward with such options.
TruthIsBitter
May 7, 2019
Correct, everybody is here to share the opinion but there is a difference between assumption and opinion by seeing the evidence and talking with people who are in that situation.
Man, again I am telling I have seen atleast 3 COS rejection notice and I haven’t seen violation word in that.
Yes if there is no option left, need to go with it.
VJ
May 7, 2019
No one has faced any issues? tell that to Farmington university students dude. Its still a grey area, just because you didn’t have a problem with it, it does not mean its completely problem free.
If Emily is spreading fake news, why don’t you enlighten all of us with those laws which clearly state Day 1 CPT is legal?
TruthIsBitter
May 7, 2019
Dude, go and search first about the case of Farmington University. That was a trap and there were no classes, no campus etc. I am talking about the CPT that is directly related to the course and which has classes to attend in person. Do not jump anywhere without any research.
Buddy I am not the lawyer that I will give you the list of laws, but you can see what was the situation back there in August about this memo because of all these hypes that doesn’t said that Day1 CPT is illegeal.
VJ
May 7, 2019
I’m not saying its illegal, i’m saying there are grey areas and it is being abused (eg: Farmington). This is my response to your sweeping statement that “Noone has face any issue because of day1 CPT”.
Emily is throwing a word of caution to people considering Day 1 CPT because of the increased scrutiny since Trump’s election. Take the advice with a pinch of salt, if it worked for you, great.
You don’t have to accuse people of creating panic.
TruthIsBitter
May 7, 2019
Buddy, I am again repeating the sentence that Noone(Genuine CPT students) faced any problem.
There is a difference between word of caution and creating hype(I am not saying Emily did it).
I am not accusing anybody here, that is just my opinion.
ImmigrationGirl
May 7, 2019
I, on the other hand, can confirm that students are facing problems returning to the US.
WonderingAloud
May 7, 2019
Emily, I think you might want to address this during one of the weekly FB calls. I know you have done it countless times before but I have a suggestion – why not point to the specific CFR regulation that says this and also why DHS brought it in to practice in the first place (like only for a few degrees like nursing, etc.). I think because the language in the rules does not use the words like ‘legal’ or ‘illegal’, universities have taken advantage and since they are approved by the SEVP, people assume they are totally fine.
I guess my bottom line is – people need more context to understand why this is not advisable.
ImmigrationGirl
May 7, 2019
Maybe I need to re-post this one: http://immigrationgirl.com/new-interpretation-of-cpt-curricular-practical-training-for-f-1-students/
Ash
May 6, 2019
Hi Emily,
Any news about H4-EAD?
thank you,
Rahulkrishnachowdary
May 5, 2019
Hi Emily,
While on f-1 during masters i have heard that students from India could not do off campus jobs but people from pakistan can do off campus job is it true
Thanks
Rahul
ImmigrationGirl
May 6, 2019
No, that is not true. There is no difference in F-1 visa laws based on country of citizenship.
Sravzz
May 4, 2019
Hi Emily,is this news anyway helpful for the former students of Farmington university who came to their respective home country before February 4th can they come back with their old visa
ImmigrationGirl
May 6, 2019
No, it would not change anything for those students since they did not trigger the 3-year bar if they left before February 4th.
Chay
May 4, 2019
Wow, you’re willfully abusing your F1 status if you’re looking for Day 1 CPT and if that’s your intent I kind of wish that the memo stands. It is because of such rampant abuse of system that Stem OPT, H4-EAD lawsuits exist and to some extent the GC backlog. Shame!
No cap gap
May 3, 2019
My attorney chose Counselor processing route because of this memo. Now, Can I ask them to file an amendment and ask for COS in the H1b application?
ImmigrationGirl
May 6, 2019
The injunction does not change the fact that the change of status would likely be denied.
ANev
May 3, 2019
Hi Emily. This is great news! As an aside, are the any updates on the public charge rule changes published last October? Is it with the OMB for final approval yet? Any expected time that it will become effective, if at all? Thank you!
ImmigrationGirl
May 3, 2019
DHS is reviewing the public comments and has not yet submitted its Final Rule to OMB for review.
DreamLand
May 3, 2019
Few people are so much attached to US, that they can’t leave or pursue other options and eventually end up violating immigration rules and committing fraud. Not a recommendable lifestyle.
Nisha
May 3, 2019
Can you please share the link to the court order or court order itself?
ImmigrationGirl
May 3, 2019
https://www.bloomberglaw.com/public/desktop/document/GUILFORDCOLLEGEetalvNIELSENetalDocketNo118cv00891MDNCOct232018Cou/5?1556915532
Nisha
May 3, 2019
Thank you for the quick response 🙂
krishna
May 3, 2019
Hi Emily ,
What does “pending resolution of this lawsuit” means ?
ImmigrationGirl
May 3, 2019
The lawsuit just started. This is a preliminary injunction, meaning the memo is blocked at the beginning of the lawsuit because the judge thinks the plaintiff might win. If the plaintiff ultimately loses, the injunction ends and DHS can go back to enforcing the memo.
CPTQues
May 3, 2019
Is Day 1 CPT a less risky option now?
ImmigrationGirl
May 3, 2019
Still just as risky
CPTQues
May 3, 2019
Can you please elaborate a little bit if you don’t mind? How is it still risky if we do not accrue unlawful presence retroactively? One could immediately depart the US to avoid being inadmissible and go through counselor processing.
ImmigrationGirl
May 3, 2019
Just because the punishment isn’t as bad doesn’t mean you should commit the crime. It is still not OK to violate your nonimmigrant status. A violation of status can make you ineligible to adjust status to obtain your green card.
CPTQues
May 3, 2019
I see. Thank you for the clarification.
FEI LI
May 3, 2019
How about CPT starts after 2 weeks?
ImmigrationGirl
May 3, 2019
Practical training may be authorized to an F-1 student who has been lawfully enrolled on a full time basis, in a Service-approved college, university, conservatory, or seminary for one full academic year
BE WISE
May 3, 2019
Blockage of this Memo does not mean you jump on to Day-1 CPT university. This memo helps you not to get barred, if you do something you are not meant to do, then it Doesn’t help you in F-1 status violation when you will apply for COS or any other similar status migration.
ImmigrationGirl
May 3, 2019
EXACTLY 🙂
Rv
May 3, 2019
Emily,
I did not quite understand the post. I heard its a temporary relief. Can you explain here in 2 sentences what it means? Does this mean the unlawful presence will not be applied from August 9th 2018 any more?
Sorry, I just want to get it right 100%
Xi Chen
May 3, 2019
So we can do Day One CPT now?
ImmigrationGirl
May 3, 2019
Please no
XYZ
May 3, 2019
Do you have any option after opt expires and work? then go for it!
Sean
May 3, 2019
Hi Emily,
Thanks so much for the update. Since this is only a temporary relief, I was wondering if you could let us know, based on your experience, how long would it usually take for a lawsuit like this to reach resolution? A few months or at least 1-2 years?
Ram
May 3, 2019
Hi Emily, thanks for sharing the great news. Can you please provide us the source?
XYZ
May 3, 2019
Unnecessary Immigration lawyers has spread panic and lot of people left because of this. Please make sure in you live show on not to spread panic.
ImmigrationGirl
May 3, 2019
Yes, much better to keep your head in the sand and end up barred for 3 or 10 years.
WonderingAloud
May 3, 2019
Emily! your comment made me laugh so hard!! even when i changed my status from F1 to H4 before Feb 5th, almost everyone around me believed I was acting with haste and I was misinformed! I struggled to explain and I eventually gave up. I can see how this news can wake those people up again…but I am saying this everyone out there…please be reassured that whatever decision you took at that moment, you are better off for it today! No one wants the uncertainty of a judge’s mood about a case! Our lives shouldn’t depend on it…stay strong and if this ruling comes out in favor of students, yay! don’t hark back and think that maybe you shouldnt have changed your visa because eventually u were going to be fine. No one can guarantee that. So trust your judgement and move on.
VJ
May 6, 2019
How is she spreading panic? Do you know how to read?
ALL HAPPIES
May 3, 2019
that’s nice
Thanks Emily and team.
Sudeep
May 3, 2019
I didn’t quite get the information in the post. Is it a positive news for students ? If yes is it just a temporary relief ?
ImmigrationGirl
May 3, 2019
It is a temporary relief from being found unlawfully present without knowing it.
Kathi
May 3, 2019
Great news!
YSUBNAR
May 3, 2019
Awesome news! Thank, Emily 🙂
Ram
May 3, 2019
Great news
XYZ
May 3, 2019
Good news for F1 students
Andy
May 3, 2019
Hi Emily
Let’s say that the court decides to go uphold DHS memo when the case comes to an end. Then what would happen? will the memo re-Enforce from aug 9th, 2018 or from the date the case comes to and end goes in DHS favor.
Thanks
ImmigrationGirl
May 3, 2019
If that happens, it should only be effective again from the date of the court decision
Desparately Day1CPT
May 6, 2019
If the decision ends up against USCIS, the agency should be fined and penalized for all the days they unlawfully enforced the memo since August 9th disregarding the fact that they didn’t know whether they were breaking the law. Get a taste of their own policies.
Kira
May 3, 2019
we won! law always win, I hope DHS don’t go to bed and dream of some new laws to apply. lol
Vapour
May 3, 2019
WOW, great news for many students. Thanks for the quick update.