Immigration – DACA

According to USCIS’s DACA page, “On Jan. 17, 2025, the U.S. Court of Appeals for the Fifth Circuit issued a decision regarding the DACA Final Rule. Pursuant to the court’s order, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23. USCIS will continue to accept initial requests but will not process initial DACA requests at this time. Current grants of DACA and related Employment Authorization Documents remain valid until they expire, unless individually terminated.”

Here is the most recent information on DACA rulemaking and litigation:

“On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas issued a decision finding the DACA Final Rule unlawful and expanding the original July 16, 2021 injunction and order of vacatur to cover the Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.” See the Memorandum and Order (PDF, 1.35 MB) and Supplemental Order of Injunction (PDF, 72.53 KB).

Accordingly, current grants of DACA and related Employment Authorization Documents (EADs) remain valid until they expire, unless individually terminated.  In accordance with this decision, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23, as it has since October 31, 2022. We will also continue to accept initial DACA requests, but in accordance with the District Court’s order, we will not process initial DACA requests.

Current valid grants of DACA and related EADs will continue to be recognized as valid under the Final Rule. This means that individuals with DACA and related EADs do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal.

Please see the DACA Litigation Information Page for important updates and information related to court rulings on the DACA policy.”

“On August 30, 2022, DHS published a final DACA rule that went into effect on October 31, 2022.

• Read the DACA final rule published at 87 FR 53152 (August 30, 2022)
• Read the DACA regulations added to the Code of Federal Regulations as 8 CFR 236 Subpart C (there were also minor conforming amendments to the employment verification regulations at 8 CFR Part 274a)

However, a prior court-imposed order currently limits the October 31, 2022 effective date. USCIS describes this limitation in an update to its DACA FAQs:

“The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021, injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.”

See USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions.

On November 29, 2021, NAFSA had joined other higher education associations in a comment letter led by the American Council on Education (ACE), submitted in response to the September 28, 2021 proposed DACA rule published at 86 FR 53736 (September 28, 2021).

Partial summary of the final DACA rule

• The final rule maintains the program’s existing eligibility criteria as established in 2012, and recipients would still receive 2 years of protection from removal (deferred action).
• In response to public comment on the proposed rule, the final rule will retain “the existing requirement that DACA requestors file Form I-765 and Form I-765WS concurrently with the Form I-821 (“bundled process”) (under the proposed rule, applying for employment authorization would have been optional).  In both the current and final programs, applicants must establish economic need on Form I-765WS worksheet to qualify for work authorization.
• In the final rule, ” DHS adopts the fee structure proposed in the NPRM of an $85 filing fee for Form I-821D, as well as a Form I-765 filing fee, currently set at $410.”
• The new regulation “rescinds and replaces the DACA guidance set forth in the Memorandum issued by the Secretary of Homeland Security on June 15, 2012.” However the rule also provides that, “All current grants of deferred action and any ancillary features previously issued pursuant to the Memorandum remain in effect and will expire according to their existing terms. All such current grants of deferred action and any ancillary features, as well as any requests for renewals of those grants and new requests, are hereafter governed by this subpart and not the Memorandum.”

But see USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions.

Threshold criteria under the final DACA rule

The final rule includes the following longstanding threshold criteria: that the requestor must have:

(1) come to the United States under the age of 16;

(2) continuously resided in the United States from June 15, 2007, to the time of filing of the request (“Brief, casual, and innocent absences from the United States will not break the continuity of one’s residence. However, unauthorized travel outside of the United States on or after August 15, 2012, will interrupt continuous residence, regardless of whether it was otherwise brief, casual, and innocent.” Other rules apply for “brief, casual, and innocent” for travel before August 15, 2012.);

(3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request;

(4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request (“If the requestor was in lawful immigration status at any time before June 15, 2012, or at any time after June 15, 2012, and before the submission date of the request, he or she must submit evidence that that lawful status had expired or otherwise terminated prior to those dates.”)

(5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

(6) not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety;

(7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order; and

(8) Applications are determined on a case-by-case basis. “Even if the threshold criteria… are all found to have been met, USCIS retains the discretion to assess the individual’s circumstances and to determine that any factor specific to that individual makes deferred action inappropriate.”)

Update: Litigation

Update Summary:

• In an October 14, 2022 order, the U.S. District Court for the Southern District of Texas (on remand) extended its July 16, 2021 injunction to cover DHS’s August 30, 2022 final DACA rule which is scheduled to become effective on October 31, 2022. The District Court summarized the state of its injunction: “DHS may continue to accept applications to the extent it has been ordered to do so by the court in Batalla Vidal v. Wolf, 16-CV4756, 2020 WL 7121849 (E.D.N.Y. Dec. 4, 2020), but it continues to be permanently enjoined from granting DACA status for any new applicants. For DACA recipients who obtained that status on or before the date of the Court’s permanent injunction (July 16, 2021), the DHS may accept and grant DACA renewal applications.”
• In an October 5, 2022 decision, the Fifth Circuit Court of Appeals upheld a 2021 decision issued by the U.S. District Court for the Southern District of Texas, and remanded the case to the district court to consider in light of DHS’s August 30, 2022 final DACA rule that is scheduled to go into effect on October 31, 2022. The district court had found that DHS’s 2012 DACA Memorandum and the DACA program that it created violated the Administrative Procedure Act (APA), and it therefore vacated and enjoined the U.S. Government “from administering the DACA program and from reimplementing DACA without compliance with the APA.” The district court partially stayed its injunction for individuals who were already granted DACA, allowing them to continue in and extend their DACA status. However, the injunction prevents DHS from approving new applications for DACA. The Fifth Circuit Court of Appeals decision preserves this partial stay, and allows DHS to continue adjudicating DACA renewals while the District Court revisits the case. DHS will continue to be enjoined from approving new DACA applications.”

On September 28, 2021, DHS published a proposed DACA rule in the Federal Register. For details, see the “Deferred Action for Childhood Arrivals” proposed rule in the Federal Register.

“On September 10, 2021, the Department of Justice filed a notice of appeal to the Fifth Circuit Court of Appeals seeking to overturn the Texas District Court’s ruling by U.S. District Court Judge Andrew Hanen in favor of nine states led by Texas that found the creation of the DACA program violated federal administrative law.” (NAFSA: Association of International Educators)

On July 19, 2021, USCIS issued a Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision:

“Pursuant to the July 16, 2021 Order issued by the U.S. District Court for the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting initial DACA requests.

All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.

USCIS is proud to play an important role in implementing DACA. DACA recipients are students, military service members, essential workers, and part of our communities in every way, shape, and form. USCIS will comply with the court order, continue to implement the components of DACA that remain in place, and work on publishing a Notice of Proposed Rulemaking designed to strengthen and fortify DACA.”

On July 27, 2021, USCIS updated its DACA FAQs.

“On July 16, 2021, Judge Hanen ruled that the 2012 DACA program begun by the Obama administration violated the Administrative Procedure Act (APA) notice and comment requirements, and that it was not in accordance with the Immigration and Nationality Act. The court therefore vacated the June 15, 2012 DHS memorandum that created it. The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., ‘those not already granted by the date of this order’). Although USCIS can continue to receive applications, it cannot approve them under the order. However, the injunction does not affect DACA benefits already granted, or renewal of already-granted DACA protection, including ancillary requests for DACA advance parole for those DACA recipients. Read the July 16, 2021 court order, and read the July 16, 2021 injunction order.” (NAFSA)

“On January 20, 2021, President Biden signed a Presidential Memorandum that directed the Secretary of Homeland Security, in consultation with the Attorney General, to ‘take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.’ See Memorandum for the Attorney General and the Secretary of Homeland Security, published in the Federal Register at 86 FR 7053 (January 25, 2021).” (NAFSA)

On December 4, 2020, the U.S. District Court for the Eastern District of New York ruled that “the Wolf Memorandum is VACATED. In light of the vacatur, all parties agree that the DACA program is currently governed by its terms as they existed prior to the attempted rescission of September 2017.” The judge’s December 4, 2020 order is in the case Batalla Vidal, et al. v. Nielsen, et al., Case # 1:16-cv-04756.

“in addition to vacating the Wolf Memorandum, the court orders the following relief:

DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020. The notice must also make clear that deferred action and employment authorization documents (“EADs”) granted for only one year are extended to two years, in line with the pre-Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs, and post it to the docket within 3 calendar days of this Order.”

On January 9, 2018, a U.S. District Court ordered the Department of Homeland Security to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments.  However, new applications from applicants who have never before received deferred action will not be processed, and DHS may still deny the right of a DACA enrollee to return to the United States if they travel abroad using advance parole. For more information, please refer to U.S. Citizenship and Immigration Services’ website Deferred Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction. For guidance on DACA requests rejected by USCIS due to U.S. Postal Service issues, please refer to USCIS’s page Guidance on Rejected DACA Requests.

On August 3, 2018, the U.S. District Court for the District of Columbia again concluded “that DHS’s September 2017 decision to rescind the DACA program…was both subject to judicial review and arbitrary and capricious.” According to D.C. District Judge John D. Bates’ 25-page opinion, “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” The U.S. government appealed the Court’s decision.

On November 8, 2018, the 9th Circuit Court of Appeals issued a decision upholding and continuing the January 9, 2018 preliminary injunction granted by the District Court of the Northern District of California. The National Immigration Law Center explains that “In its decision, the court reasoned that the plaintiffs in the case were likely to prevail on their claim that the Trump administration’s termination of DACA was ‘arbitrary and capricious’ and therefore unlawful. All three judges also noted that there was sufficient evidence that DACA was ended due to anti-Mexican or anti-Latino animus to justify keeping the injunction in place.” It is likely that the U.S. federal government will seek review by the U.S. Supreme Court. Please refer to the NILC’s Status of Current DACA Litigation page for more information.

On June 18, 2020, the U.S. Supreme Court (SCOTUS) held that the 2017 Department of Homeland Security (DHS) memo rescinding DACA was “arbitrary and capricious” under the Administrative Procedure Act in its opinion on the case Department of Homeland Security et al. v. Regents of the University of California et al. This remanded the issue back to the DHS; the agency was required to consider again the “conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” This decision left DACA intact for the time being.

On August 24, 2020, USCIS released implementing guidance (dated August 21, 2020) titled Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2020 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.'” This implementing guidance was summarized in the August 24, 2020 news alert  as follows:

“Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires. USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.

The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

• Travel to support the national security interests of the United States;
• Travel to support U.S. federal law enforcement interests;
• Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
• Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.

Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.

CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

DACA Applications

If you currently have an approved or pending DACA application, please speak to a licensed, experienced immigration attorney or recognized/accredited organization or representative before making any plans pertaining to work, travel, or a new DACA-related application. The Immigration Advocates Network’s National Immigration Legal Services Directory is an excellent resource.

Travel Related to Deferred Action for Childhood Arrivals (DACA)

If you are an undocumented person (regardless of whether you currently have permission to travel abroad through advance parole), please speak to a licensed, experienced immigration attorney before making any travel plans. Among many options, CUNY CLEAR is an excellent resource for free legal services and guidance.

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Solicitudes de DACA

Si actualmente tienes una solicitud de DACA aprobada o pendiente, consulta con un abogado de inmigración con licencia y experiencia, o con una organización o representante reconocido/acreditado antes de hacer cualquier plan relacionado con trabajo, viajes o una nueva solicitud de DACA. El Directorio Nacional de Servicios Legales de Inmigración de la Red de Defensores de Inmigración es un recurso excelente.

Viajes relacionados con la Acción Diferida para los Llegados en la Infancia (DACA)

Si eres una persona sin estatus legal o indocumentada (independientemente de si tienes permiso para viajar al extranjero a través de un permiso anticipado), consulta con un abogado de inmigración con licencia y experiencia antes de hacer cualquier plan de viaje. Entre muchas opciones, CUNY CLEAR es un recurso excelente que ofrece servicios legales gratuitos y orientación.

The following articles and pages should prove helpful in staying abreast of current issues:

• AILA: “Know Your Rights: If ICE Visits Your Home”
• Immigration Advocates Network’s National Immigration Legal Services Directory
• NAFSA: Association of International Educators: “Executive and Regulatory Actions Under the Second Trump Administration”
• American Council on Education: “Trump’s Executive Orders Shift Higher Education Landscape”
• American Civil Liberties Union (ACLU)
• ACLU: “Your Rights in the Border Zone”
• ACLU: “Know Your Rights: What To Do If You’re Stopped By Police, Immigration Agents or the FBI”
• CUNY CLEAR Legal Services
• (MISSING LINK) Montclair State University Financial Aid for New Jersey DREAMers

Please keep in mind that the information contained on this page and in the advisories and pages listed above does not constitute legal advice. Please speak to a licensed, experienced immigration attorney if you require legal counsel.

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Los siguientes artículos y páginas pueden ser útiles para mantenerse al tanto de los temas actuales:

• AILA: “Conozca sus derechos: Si ICE visita su hogar”
• Directorio Nacional de Servicios Legales de Inmigración de la Red de Defensores de Inmigración
• NAFSA: Asociación de Educadores Internacionales: “Acciones ejecutivas y regulatorias bajo la segunda administración de Trump”
• Consejo Americano de Educación: “Las órdenes ejecutivas de Trump cambian el panorama de la educación superior”
• Unión Americana de Libertades Civiles (ACLU)
• ACLU: “Tus derechos en la zona fronteriza”
• ACLU: “Conozca sus derechos: Qué hacer si lo detienen la policía, agentes de inmigración o el FBI”
• Servicios Legales de CUNY CLEAR
• Ayuda financiera de la Universidad Estatal de Montclair para DREAMers de Nueva Jersey

Ten en cuenta que la información en esta página y en los avisos y enlaces mencionados no constituye asesoría legal. Consulta con un abogado de inmigración con licencia y experiencia si necesita asesoramiento legal en su caso.

In-State Tuition under the NJ Dream Act

New Jersey residents who are undocumented under U.S. immigration law or who have been approved under DACA (Deferred Action for Childhood Arrivals) by U.S. Citizenship and Immigration Services may qualify for in-state tuition under P.L. 2013, c. 170 (NJ Senate Bill 2479), the New Jersey Tuition Equality Act, also referred to as the “New Jersey Dream Act.” Under this law, undocumented students are exempt from paying out-of-state tuition if they meet all of the following criteria:

1. Attended a New Jersey high school for three or more years;
2. Graduated from a New Jersey high school or received the equivalent of a high school diploma in New Jersey;
3. Register as an entering student or are currently enrolled in a public institution of higher education not earlier than the fall semester of the 2013-2014 academic year; and
4. In the case of a person without lawful immigration status, file the Affidavit of Intent with Montclair State University.

For more information and instructions on applying for in-state tuition, please visit: New Jersey Dream Act. Affidavits must be filed with Undergraduate Admissions or the Graduate School each year; for points-of-contact for these offices, please contact Elizabeth Gill, Director of International Employment and Immigration in the Office of University Counsel.

Financial Aid for Dreamer Students

New Jersey Governor Phil Murphy signed legislation (P.L. 2018, c. 12) granting eligible undocumented students access to NJ State Financial Aid. Please refer to (MISSING LINK)New Jersey Dreamers for information about the bill and its requirements for qualifying for state aid.

In addition, the Scholarships That Do Not Require FAFSA web page(MISSING LINK) contains a list of scholarships that do not require FASFA verification.

For financial aid questions pertaining to undocumented students, please contact Financial Aid within Red Hawk Central.

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Matrícula estatal bajo la Ley Dream de Nueva Jersey

Los residentes de Nueva Jersey que son indocumentados según la ley de inmigración de EE. UU. o que han sido aprobados bajo DACA (Acción Diferida para los Llegados en la Infancia) por los Servicios de Ciudadanía e Inmigración de EE. UU. pueden calificar para la matrícula estatal según la ley P.L. 2013, c. 170 (Proyecto de Ley del Senado de Nueva Jersey 2479), también conocida como la “Ley Dream de Nueva Jersey.”

Bajo esta ley, los estudiantes indocumentados están exentos de pagar matrícula fuera del estado si cumplen con todos los siguientes requisitos:

1. Asistieron a una escuela secundaria en Nueva Jersey durante tres años o más.
2. Se graduaron de una escuela secundaria en Nueva Jersey o recibieron el equivalente a un diploma de escuela secundaria en Nueva Jersey.
3. Se inscribieron como estudiantes nuevos o están actualmente matriculados en una institución pública de educación superior a partir del semestre de otoño del año académico 2013-2014.
4. En el caso de una persona sin estatus migratorio legal, presentar anualmente la Declaración de Intención de Legalizar el Estado Migratorio (según lo exige el estado de Nueva Jersey) ante la Universidad Estatal de Montclair.

Para obtener más información e instrucciones sobre cómo solicitar la matrícula estatal, visita: Ley Dream de Nueva Jersey. Las declaraciones deben presentarse cada año en la Oficina de Admisiones de Pregrado o en la Escuela de Posgrado. Para obtener información de contacto de estas oficinas, comunícate con Elizabeth Gill, Directora de Empleo Internacional e Inmigración en la Oficina de Asesoría Jurídica de la Universidad.

Ayuda Financiera para Estudiantes Dreamers

El Gobernador de Nueva Jersey, Phil Murphy, firmó la legislación (P.L. 2018, c. 12) que otorga a estudiantes indocumentados elegibles acceso a ayuda financiera estatal en Nueva Jersey. Visita (MISSING LINK)New Jersey Dreamers para obtener información sobre la legislación y sus requisitos para calificar para la ayuda estatal.

Además, la página web (MISSING LINK)Becas que no requieren FAFSA contiene una lista de becas que no requieren verificación de FAFSA.

Para preguntas sobre ayuda financiera para estudiantes indocumentados, comunícate con la Oficina de Ayuda Financiera en Red Hawk Central.

Connecting across Cultures

Counseling and Psychological Services (CAPS) holds this informal, supportive discussion group for international students, students who have studied abroad, and any students who are interested in dialoguing and connecting across cultures. Visit the Connecting across Cultures page for more information.

Social Justice and Diversity Discussion Groups

The Office of Student Belonging hosts a number of discussion groups for undergraduate and graduate students who share similar identities to come together in a welcoming environment to build community, share experiences, and support one another. Visit the Office of Student Belonging for more information.

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Conectando a través de las Culturas

Los Servicios de Consejería y Psicológicos (CAPS) organizan este grupo de discusión informal y de apoyo para estudiantes internacionales, estudiantes que han estudiado en el extranjero y cualquier estudiante interesado en dialogar y conectar con otras culturas. Visita la página de Conectando a través de las Culturas para más información.

Grupos de Discusión sobre Justicia Social y Diversidad

La Oficina de Justicia Social y Diversidad organiza varios grupos de discusión para estudiantes de pregrado y posgrado que comparten identidades similares, con el fin de reunirse en un ambiente acogedor, construir comunidad, compartir experiencias y apoyarse mutuamente. Visita la página de Grupos de Discusión de la Oficina de Justicia Social y Diversidad para más información.

Students who have individual concerns are encouraged to contact the Office of the Dean of Students, and they may also take advantage of the resources offered through Counseling and Psychological Services, including short-term individual counseling, group therapy, psychiatry, Let’s Talk walk-in sessions, and more. 

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Los estudiantes con inquietudes personales pueden comunicarse con la Oficina del Decano de Estudiantes, y también pueden aprovechar los recursos ofrecidos a través de Servicios de Consejería y Psicológicos (CAPS), que incluyen:

• Consejería individual a corto plazo
• Terapia de grupo
• Servicios psiquiátricos
• Sesiones sin cita previa “Let’s Talk”
• Entre otros

U.S. Department of State Pauses Issuance of Immigrant Visas for Nationals of 75 Countries

As per NAFSA: Association of International Educators:

In a January 14, 2026 news posting (slightly updated on February 2, 2026) the U.S. Department of State (DOS) announced a pause on the issuance of immigrant visas at U.S. consulates worldwide starting January 21, 2026 for nationals of 75 countries that DOS deems are ‘at high risk of public benefits usage.’ During the pause, DOS will conduct ‘a full review of all policies, regulations, and guidance to ensure that immigrants from these high-risk countries do not utilize welfare in the United States or become a public charge.’ The pause impacts only immigrant visa issuance and does not affect nonimmigrant visas such as B tourist visas, F student visas, J exchange visitor visas, H-1B work visas, etc.

Travel Ban Updates

As per NAFSA:

A pair of presidential proclamations function to restrict entry to the United States by nationals of certain countries.

• Presidential Proclamation 10949 of June 4, 2025: Restricting The Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats established a “full” travel ban on 12 countries and a “partial” travel ban on 7 countries, became effective at 12:01 a.m. eastern daylight time on June 9, 2025. Read:
  • Proclamation 10949 published on whitehouse.gov
  • Proclamation 10949 of June 4, 2025 published in the Federal Register at 90 FR 24497 (June 10, 2025)
  • White House Fact Sheet on Proclamation 10949
  • See NAFSA’s page on Proclamation 10949 for details
• Presidential Proclamation 10998 of December 16, 2025, also titled Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States, modified the lists of countries identified in Presidential Proclamation 10949, and becomes effective at 12:01 a.m eastern standard time on January 1, 2026. Read:
  • Proclamation 10998 of December 16, 2025 published on whitehouse.gov
  • Proclamation 10988 published in the Federal Register at 90 FR 59717 (December 19, 2025)
  • White House Fact Sheet on Proclamation 10998 of December 16, 2025
  • DOS News Alert: Suspension of Visa Issuance to Foreign Nationals to Protect the Security of the United States (February 2, 2026)

NAFSA: Association of International Educators is providing regular updates summarizing executive orders, Presidential proclamations, and other emerging developments under the second Trump administration:

• NAFSA: Association of International Educators — Executive and Regulatory Actions Under the Second Trump Administration

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NAFSA: Association of International Educators está proporcionando actualizaciones periódicas que resumen órdenes ejecutivas, proclamaciones presidenciales y otros desarrollos emergentes bajo la segunda administración de Trump:

• NAFSA: Asociación de Educadores Internacionales – Acciones Ejecutivas y Regulatorias Bajo la Segunda Administración de Trump

According to USCIS’s DACA page, “On Jan. 17, 2025, the U.S. Court of Appeals for the Fifth Circuit issued a decision regarding the DACA Final Rule. Pursuant to the court’s order, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23. USCIS will continue to accept initial requests but will not process initial DACA requests at this time. Current grants of DACA and related Employment Authorization Documents remain valid until they expire, unless individually terminated.”

Here is the most recent information on DACA rulemaking and litigation:

“On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas issued a decision finding the DACA Final Rule unlawful and expanding the original July 16, 2021 injunction and order of vacatur to cover the Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.” See the Memorandum and Order (PDF, 1.35 MB) and Supplemental Order of Injunction (PDF, 72.53 KB).

Accordingly, current grants of DACA and related Employment Authorization Documents (EADs) remain valid until they expire, unless individually terminated.  In accordance with this decision, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23, as it has since October 31, 2022. We will also continue to accept initial DACA requests, but in accordance with the District Court’s order, we will not process initial DACA requests.

Current valid grants of DACA and related EADs will continue to be recognized as valid under the Final Rule. This means that individuals with DACA and related EADs do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal.

Please see the DACA Litigation Information Page for important updates and information related to court rulings on the DACA policy.”

U.S. Department of State Pauses Issuance of Immigrant Visas for Nationals of 75 Countries

As per NAFSA: Association of International Educators:

In a January 14, 2026 news posting (slightly updated on February 2, 2026) the U.S. Department of State (DOS) announced a pause on the issuance of immigrant visas at U.S. consulates worldwide starting January 21, 2026 for nationals of 75 countries that DOS deems are ‘at high risk of public benefits usage.’ During the pause, DOS will conduct ‘a full review of all policies, regulations, and guidance to ensure that immigrants from these high-risk countries do not utilize welfare in the United States or become a public charge.’ The pause impacts only immigrant visa issuance and does not affect nonimmigrant visas such as B tourist visas, F student visas, J exchange visitor visas, H-1B work visas, etc.

Travel Ban Updates

As per NAFSA:

A pair of presidential proclamations function to restrict entry to the United States by nationals of certain countries.

• Presidential Proclamation 10949 of June 4, 2025: Restricting The Entry of Foreign Nationals to Protect the United States from Foreign Terrorists and Other National Security and Public Safety Threats established a “full” travel ban on 12 countries and a “partial” travel ban on 7 countries, became effective at 12:01 a.m. eastern daylight time on June 9, 2025. Read:
  • Proclamation 10949 published on whitehouse.gov
  • Proclamation 10949 of June 4, 2025 published in the Federal Register at 90 FR 24497 (June 10, 2025)
  • White House Fact Sheet on Proclamation 10949
  • See NAFSA’s page on Proclamation 10949 for details
• Presidential Proclamation 10998 of December 16, 2025, also titled Restricting and Limiting the Entry of Foreign Nationals to Protect the Security of the United States, modified the lists of countries identified in Presidential Proclamation 10949, and becomes effective at 12:01 a.m eastern standard time on January 1, 2026. Read:
  • Proclamation 10998 of December 16, 2025 published on whitehouse.gov
  • Proclamation 10988 published in the Federal Register at 90 FR 59717 (December 19, 2025)
  • White House Fact Sheet on Proclamation 10998 of December 16, 2025
  • DOS News Alert: Suspension of Visa Issuance to Foreign Nationals to Protect the Security of the United States (February 2, 2026)

The following organizations are providing regular updates summarizing executive orders, Presidential proclamations, and other emerging developments under the second Trump administration:

• NAFSA: Association of International Educators — Executive and Regulatory Actions Under the Second Trump Administration
• American Council on Education — Trump’s Executive Orders Shift Higher Education Landscape

According to USCIS’s DACA page, “On Jan. 17, 2025, the U.S. Court of Appeals for the Fifth Circuit issued a decision regarding the DACA Final Rule. Pursuant to the court’s order, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23. USCIS will continue to accept initial requests but will not process initial DACA requests at this time. Current grants of DACA and related Employment Authorization Documents remain valid until they expire, unless individually terminated.”

Here is the most recent information on DACA rulemaking and litigation:

“On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas issued a decision finding the DACA Final Rule unlawful and expanding the original July 16, 2021 injunction and order of vacatur to cover the Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.” See the Memorandum and Order (PDF, 1.35 MB) and Supplemental Order of Injunction (PDF, 72.53 KB).

Accordingly, current grants of DACA and related Employment Authorization Documents (EADs) remain valid until they expire, unless individually terminated.  In accordance with this decision, USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23, as it has since October 31, 2022. We will also continue to accept initial DACA requests, but in accordance with the District Court’s order, we will not process initial DACA requests.

Current valid grants of DACA and related EADs will continue to be recognized as valid under the Final Rule. This means that individuals with DACA and related EADs do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal.

Please see the DACA Litigation Information Page for important updates and information related to court rulings on the DACA policy.”

“On August 30, 2022, DHS published a final DACA rule that went into effect on October 31, 2022.

• Read the DACA final rule published at 87 FR 53152 (August 30, 2022)
• Read the DACA regulations added to the Code of Federal Regulations as 8 CFR 236 Subpart C (there were also minor conforming amendments to the employment verification regulations at 8 CFR Part 274a)

However, a prior court-imposed order currently limits the October 31, 2022 effective date. USCIS describes this limitation in an update to its DACA FAQs:

‘The final rule is effective Monday, October 31, 2022. However, while a July 16, 2021, injunction from the U.S. District Court for the Southern District of Texas remains in effect, DHS is prohibited from granting initial DACA requests and related employment authorization under the final rule. Because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.’

See USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions…

Partial summary of the final DACA rule

• The final rule maintains the program’s existing eligibility criteria as established in 2012, and recipients would still receive 2 years of protection from removal (deferred action).
• In response to public comment on the proposed rule, the final rule will retain ‘the existing requirement that DACA requestors file Form I-765 and Form I-765WS concurrently with the Form I-821 (“bundled process”) (under the proposed rule, applying for employment authorization would have been optional).  In both the current and final programs, applicants must establish economic need on Form I-765WS worksheet to qualify for work authorization.
• In the final rule, ‘ DHS adopts the fee structure proposed in the NPRM of an $85 filing fee for Form I-821D, as well as a Form I-765 filing fee, currently set at $410.’
• The new regulation ‘rescinds and replaces the DACA guidance set forth in the Memorandum issued by the Secretary of Homeland Security on June 15, 2012.’ However the rule also provides that, ‘All current grants of deferred action and any ancillary features previously issued pursuant to the Memorandum remain in effect and will expire according to their existing terms. All such current grants of deferred action and any ancillary features, as well as any requests for renewals of those grants and new requests, are hereafter governed by this subpart and not the Memorandum.’

But see USCIS’s web page DACA Litigation Information and Frequently Asked Questions for information on the limits on the new regulation, imposed by court injunctions.

Threshold criteria under the final DACA rule

The final rule includes the following longstanding threshold criteria: that the requestor must have:

(1) come to the United States under the age of 16;

(2) continuously resided in the United States from June 15, 2007, to the time of filing of the request (‘Brief, casual, and innocent absences from the United States will not break the continuity of one’s residence. However, unauthorized travel outside of the United States on or after August 15, 2012, will interrupt continuous residence, regardless of whether it was otherwise brief, casual, and innocent.’ Other rules apply for ‘brief, casual, and innocent’ for travel before August 15, 2012.);

(3) been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request;

(4) not been in a lawful immigration status on June 15, 2012, as well as at the time of request (‘If the requestor was in lawful immigration status at any time before June 15, 2012, or at any time after June 15, 2012, and before the submission date of the request, he or she must submit evidence that that lawful status had expired or otherwise terminated prior to those dates.’)

(5) graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

(6) not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety;

(7) been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order; and

(8) Applications are determined on a case-by-case basis. ‘Even if the threshold criteria… are all found to have been met, USCIS retains the discretion to assess the individual’s circumstances and to determine that any factor specific to that individual makes deferred action inappropriate.’)”

On September 28, 2021, DHS published a proposed DACA rule in the Federal Register. For details, see the “Deferred Action for Childhood Arrivals” proposed rule in the Federal Register.

“On September 10, 2021, the Department of Justice filed a notice of appeal to the Fifth Circuit Court of Appeals seeking to overturn the Texas District Court’s ruling by U.S. District Court Judge Andrew Hanen in favor of nine states led by Texas that found the creation of the DACA program violated federal administrative law.” (NAFSA: Association of International Educators)

On July 19, 2021, USCIS issued a Statement from USCIS Acting Director Tracy Renaud on Deferred Action for Childhood Arrivals (DACA) Court Decision:

“Pursuant to the July 16, 2021 Order issued by the U.S. District Court for the Southern District of Texas in Texas v. United States, the Department of Homeland Security (DHS) is enjoined from granting initial DACA requests.

All individuals whose DACA requests were granted prior to this decision will continue to have and be eligible to renew DACA, and to request and receive advance parole, consistent with the court’s order. U.S. Citizenship and Immigration Services (USCIS) will provide additional specific operational guidance in the coming days.

USCIS is proud to play an important role in implementing DACA. DACA recipients are students, military service members, essential workers, and part of our communities in every way, shape, and form. USCIS will comply with the court order, continue to implement the components of DACA that remain in place, and work on publishing a Notice of Proposed Rulemaking designed to strengthen and fortify DACA.”

On July 27, 2021, USCIS updated its DACA FAQs.

“On July 16, 2021, Judge Hanen ruled that the 2012 DACA program begun by the Obama administration violated the Administrative Procedure Act (APA) notice and comment requirements, and that it was not in accordance with the Immigration and Nationality Act. The court therefore vacated the June 15, 2012 DHS memorandum that created it. The court also issued a nationwide injunction prohibiting DHS from approving new DACA applications (i.e., ‘those not already granted by the date of this order’). Although USCIS can continue to receive applications, it cannot approve them under the order. However, the injunction does not affect DACA benefits already granted, or renewal of already-granted DACA protection, including ancillary requests for DACA advance parole for those DACA recipients. Read the July 16, 2021 court order, and read the July 16, 2021 injunction order.” (NAFSA)

“On January 20, 2021, President Biden signed a Presidential Memorandum that directed the Secretary of Homeland Security, in consultation with the Attorney General, to ‘take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA.’ See Memorandum for the Attorney General and the Secretary of Homeland Security, published in the Federal Register at 86 FR 7053 (January 25, 2021).” (NAFSA)

On December 4, 2020, the U.S. District Court for the Eastern District of New York ruled that “the Wolf Memorandum is VACATED. In light of the vacatur, all parties agree that the DACA program is currently governed by its terms as they existed prior to the attempted rescission of September 2017.” The judge’s December 4, 2020 order is in the case Batalla Vidal, et al. v. Nielsen, et al., Case # 1:16-cv-04756.

“in addition to vacating the Wolf Memorandum, the court orders the following relief:

• DHS is DIRECTED to post a public notice, within 3 calendar days of this Order, to be displayed prominently on its website and on the websites of all other relevant agencies, that it is accepting first-time requests for consideration of deferred action under DACA, renewal requests, and advance parole requests, based on the terms of the DACA program prior to September 5, 2017, and in accordance with this court’s Memorandum & Order of November 14, 2020. The notice must also make clear that deferred action and employment authorization documents (“EADs”) granted for only one year are extended to two years, in line with the pre-Wolf Memorandum policy. The Government shall provide a copy of the notice to class counsel and to State Plaintiffs, and post it to the docket within 3 calendar days of this Order.”

On September 5, 2017, the Department of Homeland Security issued a memo rescinding the June 2012 DHS memo that established the Deferred Action for Childhood Arrivals (DACA) program. The new memo set forth a plan for phasing out DACA, which included a limited period of time in which the DHS would adjudicate certain requests for DACA and associated applications for work permits (Employment Authorization Documents or EADs). The DHS plan was as follows:

• Keep effective all previously approved DACA and work permits (EADs) for the remaining duration of their validity period.
• Adjudicate on an individual, case-by-case basis initial, properly filed requests for DACA that were pending as of September 5, 2017.
• Reject all requests for DACA that were filed after September 5, 2017.
• Adjudicate on an individual, case-by-case basis properly filed requests for DACA renewal from those beneficiaries whose benefits will expire between September 5, 2017, and March 5, 2018, as long as the requests are filed by October 5, 2017. All other renewal requests will be rejected by the DHS.
• Not approve any new or pending applications for advance parole to travel abroad. However, the DHS will honor the stated validity period for previously approved applications for advance parole. Remember that U.S. Customs & Border Protection (CBP) retains the authority to determine the admissibility and eligibility for parole of anyone presenting at the border, and U.S. Citizenship and Immigration Services (USCIS) retains the authority to revoke or terminate advance parole documents.

On January 9, 2018, a U.S. District Court ordered the Department of Homeland Security to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments.  However, new applications from applicants who have never before received deferred action will not be processed, and DHS may still deny the right of a DACA enrollee to return to the United States if they travel abroad using advance parole.

On August 3, 2018, the U.S. District Court for the District of Columbia again concluded “that DHS’s September 2017 decision to rescind the DACA program…was both subject to judicial review and arbitrary and capricious.” According to D.C. District Judge John D. Bates’ 25-page opinion, “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” The U.S. government appealed the Court’s decision.

On November 8, 2018, the 9th Circuit Court of Appeals issued a decision upholding and continuing the January 9, 2018 preliminary injunction granted by the District Court of the Northern District of California. The National Immigration Law Center explains that “In its decision, the court reasoned that the plaintiffs in the case were likely to prevail on their claim that the Trump administration’s termination of DACA was ‘arbitrary and capricious’ and therefore unlawful. All three judges also noted that there was sufficient evidence that DACA was ended due to anti-Mexican or anti-Latino animus to justify keeping the injunction in place.” It is likely that the U.S. federal government will seek review by the U.S. Supreme Court. Please refer to the NILC’s Status of Current DACA Litigation page for more information.

On June 18, 2020, the U.S. Supreme Court (SCOTUS) held that the 2017 Department of Homeland Security (DHS) memo rescinding DACA was “arbitrary and capricious” under the Administrative Procedure Act in its opinion on the case Department of Homeland Security et al. v. Regents of the University of California et al. This remanded the issue back to the DHS; the agency was required to consider again the “conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” This decision left DACA intact for the time being.

On August 24, 2020, USCIS released implementing guidance (dated August 21, 2020) titled Implementing Acting Secretary Chad Wolf’s July 28, 2020 Memorandum, “Reconsideration of the June 15, 2020 Memorandum ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.'” This implementing guidance was summarized in the August 24, 2020 news alert  as follows:

“Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires. USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.

The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

• Travel to support the national security interests of the United States;
• Travel to support U.S. federal law enforcement interests;
• Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or
• Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.

Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.

CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

If you currently have DACA approval or a pending DACA application, please speak to a licensed, experienced immigration attorney or recognized/accredited organization or representative before making any plans pertaining to work, travel, or applying for a DACA renewal. Among many options, CUNY CLEAR is an excellent resource for free legal services and guidance.

Information regarding the citizenship and immigration/visa status of individual students shall not be generally accessible, including via computer applications that provide access to student data, such as Banner and Degree Works. Access to this information shall be restricted to University employees for whom access to such information is required to provide service or support to specific students. When such information is necessary, only the information for the specific student(s) will be accessed, as required for a specified purpose.

The University will not share with individuals or organizations outside the University community information regarding the citizenship and immigration/visa status of an individual student, without the express permission of the student.

The restrictions above are subject to the exceptions specifically listed below:

1. Backup and restoration of student data, as well as system-administration tasks, undertaken 
by information-technology system administrators, that require validation of data.
2. A warrant, subpoena, National Security Letter, or other such government or court order 
that the University has determined to be legally executed and compels a response.

Any employee or student of the University who encounters an instance where information is not being handled in accordance with the procedures identified above should report that matter as soon as possible to the Dean of Students, University Counsel or the Vice President for Human Resources.

Implemented February 14, 2018
Office of the President

The full policy is located here and was implemented on October 17, 2022.

The University seeks to recruit and retain the highest quality employees to support the mission of the University. To achieve this objective, in its sole discretion, the University may elect to provide immigration sponsorship to foreign nationals.

To ensure compliance with federal immigration and employment regulations, Montclair State University (hereinafter, “the University” or “University”) has established this policy and related procedures for University-sponsored, employment-based immigration petitions.

All University departments/divisions seeking to hire, extend the work authorization of, or amend the salary/title/job location/job duties of a foreign national for any position must coordinate exclusively with the Office of University Counsel within the Office of the President. Under no circumstances will University-sponsored, employment-based applications be processed, advised, or signed by individuals outside University Counsel and the University’s contractually designated immigration attorneys without written permission from the Office of University Counsel.

This policy outlines the procedures necessary for the University to petition the federal government for various types of immigration applications, all of which are managed by the Office of University Counsel in collaboration with the University’s designated immigration attorneys, as needed. The Office of University Counsel works closely with the University’s designated immigration attorneys, Human Resources, Academic Affairs, hiring departments, and international employees to identify the best course of action for maintaining an employee’s work authorization throughout their employment with the University, while carefully considering the individual needs of each employee.

Definitions

U.S. Department of Homeland Security (DHS)

The U.S. Department of Homeland Security (DHS) is a cabinet department of the U.S. federal government whose stated vision is “to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards.”

U.S. Citizenship and Immigration Services (USCIS)

U.S. Citizenship and Immigration Services is an agency within the DHS that administers immigration and naturalization services for the United States, including employment-based immigration petitions and applications.

Department of Labor (DOL)

“The Department of Labor (DOL) fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment, protecting their retirement and health care benefits, helping employers find workers, strengthening free collective bargaining, and tracking changes in employment, prices, and other national economic measurements.” (DOL’s FAQ page)

H-1B

Immigration status/visa for a “specialty occupation” requiring a bachelor’s degree or its equivalent in a particular field or requiring “specialized and complex” duties “usually associated with the attainment of a bachelor’s or higher degree.” For more information, visit USCIS’s H-1B page.

O-1

Immigration status/visa for an “individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.” U.S. Citizenship and Immigration Services states: “To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.” For more information, visit USCIS’s O-1 page.

E-3

Immigration status/visa available “only to nationals of Australia. You must be coming to the United States solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.” For more information, visit USCIS’s E-3 page.

TN

Immigration status/visa that “permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.” Tenure-track or tenured faculty members are not eligible for this status/visa. For more information, visit USCIS’s TN NAFTA Professionals page.

Lawful Permanent Resident (LPR) (“Green Card”)

The Lawful Permanent Residence (LPR) process allows individuals to adjust their immigration status from nonimmigrant to immigrant by becoming green card holders.

Prevailing Wage (Form ETA-9141)

“The ‘prevailing wage’ rate is generally defined as the average wage rate paid to similarly employed workers in a specific occupation in the area of intended employment. The Immigration and Nationality Act (INA) and Department of Labor (DOL) regulations require that an employer pay at least the ‘prevailing wage rate’ as a condition of sponsoring an alien worker in the H-1B, H-1B1, H-2, or E-3 nonimmigrant categories, and as a condition of filing a permanent labor certification application through PERM. The theory behind the prevailing wage requirement is to prevent employers from undercutting the wages of U.S. workers by paying alien workers less than the prevailing wage rate.” (NAFSA Adviser’s Manual 360)

Labor Condition Application (Form ETA-9035)

Having a Labor Condition Application certified by the Department of Labor is a precondition to an employee being “admitted or provided status as an H-1B [or E-3] nonimmigrant” [INA: Act 212(n)(1)].

Labor Certification (Form ETA-9089)

“An employer must obtain an individual labor certification on behalf of an alien applying for lawful permanent residence under the following employment-based preference classifications:

• EB-2 Holders of advanced degrees (unless also applying for a national interest waiver or filing under Schedule A blanket certification)
• EB-2 Aliens of exceptional ability (unless also applying for a national interest waiver or filing under Schedule A blanket certification)…

A labor certification is a finding by the Department of Labor (DOL) that there are not sufficient U.S. workers in the geographic area of employment who are able, willing, qualified (or equally qualified, in the case of college and university teachers) and available to do the job in question, and that the employment of an alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.” (NAFSA Adviser’s Manual 360)

Procedures

Petitions for Employment-Based Visas/Immigration Status

Petitions for temporary employment-based immigration status/visas (H-1B, TN, O-1, E-3) are prepared by the Director of International Employment and Immigration in the Office of University Counsel in consultation with the University’s designated immigration attorneys, as needed. Hiring units seeking to sponsor international employees in full-time, permanent or tenure-track/tenured positions for an employment-based immigration status based on their employment/employment offer at the University must contact the Director of International Employment and Immigration in the Office of University Counsel to undergo an immigration review process. In the case of a prospective employee, this review process can begin after the University has made a written offer of employment. The Director of International Employment and Immigration will evaluate the case based on the available evidence and recommend a course of action to the hiring unit. Hiring units should be aware that recommendations may change based on the information and documentation the hiring unit and employee/prospective employee provide throughout the application process.

Petitions for Employment-Based Lawful Permanent Resident Status

Hiring units seeking to sponsor international employees in full-time, permanent or tenure-track/tenured positions for Lawful Permanent Resident (LPR) status based on their employment at the University must contact the Office of University Counsel to undergo an LPR review process. University Counsel will evaluate the case based on the available evidence and make a recommendation to the University provost if it appears to be within the best interest of the university to move forward with an LPR application. Employment-based petitions for LPR status are costly and complex, and in order for the University to pursue an application, the applicant’s position and immigration background must meet certain minimum criteria. Whenever possible, the University will pursue “special handling” labor certification with the Department of Labor for teaching positions, which must meet the Code of Federal Regulations (CFR) criteria described in the Principles and Practice section below.

Self-Petitioned Applications for Lawful Permanent Resident Status

Beyond their relationship with a Montclair State University employing department, international employees may have one or more personal paths through which they wish to apply for LPR status, including family-based LPR petitions, National Interest Waiver self-petitions through the second preference EB-2 category, and Extraordinary Ability petitions through the first preference EB-1 category. Since these petitions do not require the University to “sponsor” the employee, individuals are free to pursue them, but employees of Montclair State University are not permitted to sponsor or sign these petitions/applications. If individuals require legal counsel for such applications, they must personally arrange for the services of an immigration attorney. University employing units may not pay any fees associated with these personal petitions or contract with attorneys outside the University (including the University’s designated immigration attorneys) to provide such services for their employees. The Office of University Counsel will consider exceptions to this section of the policy in consultation with the University Provost only when it is in the University’s best interest to do so.

Principles and Practice

For All Employment-Based Immigration Inquiries and Applications

1. Hiring units must not promise to file any immigration application or pursue any benefit on behalf of a current or prospective international employee, since each employee’s situation must be reviewed on its own merits, as factors such as available resources and timing of the application are critical to any determination.
2. With rare exceptions, the University will only sponsor full-time, permanent or tenure-track/tenured positions for employment-based immigration applications.
3. The hiring department or division/college/school is required to pay all USCIS and Department of Labor fees other than premium processing, which is optional for certain applications but may be required in order to meet a projected employment start date. When the premium processing fee is not required for the employee to start or continue work, the fee may be paid by the hiring department or the employee.
4. All requests for employment‑based immigration status/visas for international faculty and staff must be directed to the Office of University Counsel. If the Office of University Counsel determines that an Exchange Visitor (J-1) category (Research Scholar, Professor, Short-Term Scholar, or Specialist) is a better fit for a prospective employee, the case will be referred to the Office of International Engagement.
5. A representative from the Office of University Counsel must review and sign all USCIS forms related to a given application or petition (including the I-907, I-129, I-140, etc.) and all attorney representation G‑28 forms that enable designated legal counsel to work in support of an institutional petition. No other university representatives are permitted to sign immigration forms on behalf of the University without written permission from the Office of University Counsel.
6. Individual employees and departments may not work independently with an external attorney in cases involving a University-sponsored petition unless directly referred by the Office of University Counsel.
7. The Office of University Counsel will coordinate workshops on the process for hiring and onboarding international employees. Departmental supervisors/chairs of prospective and current international employees and HR liaisons are strongly encouraged to attend one of these sessions.
8. If Montclair State University elects to apply for employment-based nonimmigrant or immigrant status or a visa on behalf of an individual who accepts an offer of employment, the individual must cooperate fully and on a timely basis in providing the information required by the initial application or any amendment or extension application.  If the individual fails to cooperate (which includes but is not limited to failing to timely provide accurate information or documentation), or the nonimmigrant or immigrant status or visa cannot be obtained within a reasonable period of time (as determined by Montclair State University in its sole discretion), or if the immigration application is denied, Montclair State University may withdraw the offer of employment and, if employment has begun, Montclair State University may terminate the individual’s employment upon 60-days written notice, subject to any applicable collective negotiations agreement, and/or require the individual to reimburse the costs (or portion thereof) associated with the immigration application.
9. An immigration application requires a determination as to whether government authorization or an export control license is required before releasing certain equipment, materials, technology, and software to foreign nationals in connection with their employment. The hiring unit and the individual offered employment are required to complete a Deemed Export Control Certification on a timely basis to permit University Counsel to undertake the evaluation required to make this determination. If such license or authorization is required, the offer of employment is contingent upon receipt of any such required government authorizations or export control licenses and satisfactory review by University Counsel.  In the event the government authorization or export control license is subject to a presumption of denial, or cannot be obtained within a reasonable period of time or reasonable expense (as determined by Montclair State University in its sole discretion), Montclair State University may withdraw the offer of employment, and if employment has begun, Montclair State University may terminate employment upon 60-days written notice, subject to any applicable collective negotiations agreement.

For Lawful Permanent Residence Only

1. International employees in positions defined by Human Resources as temporary are not eligible for a University‑sponsored application for LPR.
2. The request to pursue employment-based permanent residence must be approved first by the supervising manager and dean/division head and then by the Office of University Counsel and the University Provost.
3. Department representatives may request a review of their candidate’s qualifications for pursuing University-sponsored permanent residence, and the Office of University Counsel will coordinate with the employee and/or departmental supervisor/chair to obtain the information needed to assess the candidate’s qualifications. Based on the information provided, University Counsel will determine if the individual and position meet the minimum University requirements for sponsorship, and if they do, whether the application for permanent residence will be administered internally by the Director of International Employment and Immigration, by the University’s designated immigration attorneys, or by both.
4. All documentation in support of a petition for permanent residence, academic and professional appointments alike, must reside with the Office of University Counsel for a period of 5 years from the date of filing the petition. This includes all application materials submitted in response to a labor test.

5. Special Handling Labor Certification.Whenever possible, the University will pursue a “special handling” Labor Certification with the Department of Labor for teaching positions. To do so, the following Code of Federal Regulations (CFR) requirements must be met:20 CFR 656.18(b)
   (b) Recruitment. The employer… must be able to document the alien was selected for the job opportunity in a competitive recruitment and selection process through which the alien was found to be more qualified than any of the United States workers who applied for the job. For purposes of this paragraph (b), documentation of the “competitive recruitment and selection process” must include:
   (1) A statement, signed by an official who has actual hiring authority from the employer outlining in detail the complete recruitment procedures undertaken; and which must set forth:
   (i) The total number of applicants for the job opportunity;
   (ii) The specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job; and
   (2) A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process;
   (3) A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements;
   (4) Evidence of all other recruitment sources utilized; and
   (5) A written statement attesting to the degree of the alien’s educational or professional qualifications and academic achievements20 CFR 656.18(c)
   (c) Time limit for filing. Applications for permanent alien labor certification for job opportunities as college and university teachers must be filed within 18 months after a selection is made pursuant to a competitive recruitment and selection process.To qualify for special handling Labor Certification, the following requirements must be met, as per federal regulations: (a) the position requires classroom teaching; (b) the original employment offer letterto the incumbent must carry a date not more than 15 months prior to the initial request for LPR; and (c) the recruitment process that resulted in the offer made to the incumbent must meet the CFR requirements above, including a print ad and/or 30-day electronic or web-based advertisement in a national professional journal documenting the position title, duties, and requirements. A national professional journal is a journal that circulates nationally, not merely in a local area or region—e.g. The Chronicle of Higher Education. Electronic or online media must also meet the “national professional journal” requirement and not be merely a collection of job postings. A job website (e.g. HigherEdJobs.com) would not constitute a national professional journal, which would have to include both articles and job listings. Labor Certifications for academic positions that do not meet requirements (a) through (c) will not be processed via special handling.

    

   The hiring unit should be aware that depending on the specific type of employment‑based LPR petition filed, all applicant CVs, along with the other documentation listed in the CFR above, for the position in question may be required for submission to Office of University Counsel to comply with Department of Labor requirements. If a department is considering the possibility of permanent residence sponsorship, it should consult with the Office of University Counsel before discarding any applications or supporting documentation for the search for the position in question.

6. Outstanding Professor or Researcher (First Preference EB-1).The Office of University Counsel, in collaboration with its designated immigration attorneys, as needed, will determine if an applicant meets the criteria for Outstanding Professor or Researcher as defined by the Department of Homeland Security and has a strong case for the EB-1 application. To qualify, scholars must document that they are recognized internationally as outstanding in a specific academic area. Federal guidelines for documentation of the EB-1 category are rigorous and include (but are not limited to) the ability to demonstrate three years of experience in the academic field, proof of international recognition of one’s research, receipt of major awards in the field, invited memberships in professional organizations, significant original research demonstrated by published books, multiple journal articles as primary author and patents, and professional experiences judging the work of others in the field.
7. The hiring department is required to pay all advertising costs associated with the Labor Certification petition. The USCIS I-140 filing fee can be paid by either the international employee or the hiring department.
8. LPR self-petitions that do not require University support may be pursued with outside legal counsel at the employee’s expense.
9. It is strongly recommended that the international employee have their I-485 petition reviewed by The Office of University Counsel to request an adjustment of status to Lawful Permanent Resident after the I-140 is approved or if eligible, in a concurrent filing with the I-140 petition. Either the department or the employee may pay the USCIS filing fees for the I-485.

To Whom Policy Is Applicable

Hiring units across the university, international employees and prospective employees, Human Resources, and Academic Affairs.

Exclusions & Special Situations

Each case of employment-based immigration sponsorship must be reviewed on its own merits, as factors such as available resources and timing of the application are critical to any determination. Exceptions to the policy as written can only be made at the recommendation of the Office of University Counsel with the approval of the Provost.

Responsible Office(s):

University Counsel

Responsible Officer(s):

• Althea Broomfield-Michel, University Counsel
• Elizabeth A. Gill, Director of International Employment and Immigration

Contact(s):

Elizabeth A. Gill
Director of International Employment and Immigration
gille@montclair.edu
973-655-5225