Trump Administration’s New Immigration Policies Take Effect Oct. 1, 2018

Two of the Trump administration’s new immigration policies go into effect today. Beginning today, October 1, 2018, foreign national students who had been working under a regulation known as the “cap-gap” are no long authorized to work. The announcement can be found here.

The “cap-gap” period starts when an F‑1 student’s status and work authorization expire, and it continues until September 30th, while the student’s H-1B visa petition is pending. Foreign national students can remain in the United States while the H-1B visa petition is pending, but cannot work unless they obtain authorization from some other source, such as optional practical training (OPT). Foreign national students who work before receiving an approval of the H-1B visa risk accruing unlawful presence. A foreign national student who accrues unlawful status may need to seek reinstatement as required by the Trump administration’s recent policy change on calculating unlawful presence for F, J and M nonimmigrants. A copy of the new policy can be found here.

In the past, foreign national students and their employers could obtain an adjudication of their H‑1B visa and avoid a gap in employment by paying for premium processing, which guarantees an adjudication of an H-1B visa within 15 calendar days. But the Trump administration recently suspended premium processing for most H-1B visa petitions until February 2019.

Today also marks the first day that U.S. Citizenship and Immigration Services (USCIS) will begin implementing the Updated Guidance for the Referral of Cases and Issuance of Notices to Appear in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum. Under this policy, USCIS may now commence a removal proceeding by issuing a notice to appear in immigration court on denied status-impacting applications, including but not limited to Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

With the advent of these interlocking policies, foreign national students and their employers must be particularly vigilant. Now, the failure to comply carries even greater consequences.