On Aug 14 2018 by Natalia Gouz

Foreign Students and Exchange Visitors Beware: You May Be Barred from the U.S. & Not Even Know It

Last week, the U.S. Citizenship & Immigration Services (USCIS) put into effect a new policy that significantly impacts the foreign student and exchange visitor population in the United States. According to the Department of Commerce, international students contributed $39.4 billion to the U.S. economy in 2016, which created or supported over 450,000 jobs. This new policy constitutes a striking departure from the agency’s previous twenty-year long practice.

The policy affects how the federal government calculates a foreign student’s or exchange visitor’s period of “unlawful presence” in the United States. Under a 1996 amendment to the Immigration and Nationality Act, a prior period of “unlawful presence” may bar a foreign national from returning to the United States for 3 or 10 years after leaving.

To fully understand the new and old policies, it is important to note that Congress defined “unlawful presence” as distinct from “failure to maintain status.” An individual could violate the terms of his or her status, which could result in negative consequences for future immigration benefits but not necessarily render the individual “unlawfully present.”

There are generally only two ways in which foreign nationals are deemed to be “unlawfully present” in the United States. One is by overstaying their authorized period of admission. Another is through an official determination from USCIS (during the adjudication of a request for another immigration benefit) or an immigration judge (by an order of removal from the United States). Unlawful presence begins to accrue the day following the expiration of one’s period of admission – their “period of stay authorized” by the government, in the language of the statute — or the official government determination.

For most nonimmigrants (foreign visitors or temporary residents), the period of authorized stay is clearly noted as a date certain on their I-94 admission record. The I-94 is issued either by the U.S. Customs & Border Protection (CBP) agency or by USCIS.

Foreign students and exchange visitors, in most cases, are admitted instead for a “Duration of Status” or “D/S.” They may lawfully remain in the United States for the duration of their respective course of study or exchange program. For twenty years, the government has interpreted the “period of stay authorized” for students and exchange visitors as not having a definitive end date granted by the government. As such, it has been impossible for a foreign student or exchange visitor to become “unlawfully present” in the United States; accrual of unlawful presence could only begin after an official determination of a status violation is issued.

Under the previous policy, if a foreign student or exchange visitor failed to maintain status by, for example, failing to enroll in the required course-load or attend classes except for authorized breaks, engaging in unauthorized employment, or having a technical document violation, the individual would be out of status, but not be deemed to be “unlawfully present” unless an official finding was made by the government. Failure to maintain status could still negatively impact future applications for immigration benefits but would not subject the individual to the 3-or 10-year bar. The critical point of the old interpretation was that a foreign student or exchange visitor had to be put on notice that their period of stay was terminated by the government, as required by the statute, for a status violation to start a period of “unlawful presence.” That interpretation was consistent with the statutory language that “unlawful presence” and the consequences thereof only began at the end of a “period of stay authorized” by the government.

Referencing data on visa overstays and technological advances, USCIS has now changed its twenty-year long policy for calculating unlawful presence for F, M, and J nonimmigrants who are admitted for the D/S period of stay. The start date for the accrual of unlawful presence, based on status violation, has changed.

Starting August 9, 2018, F, M, and J nonimmigrants who fail to maintain status will begin to accrue unlawful presence (based on a status violation which occurs on or after this date), the day after one of the following occurs (whichever is earlier):

  1. F, M, or J nonimmigrant no longer pursues the course of study or the authorized activity or engages in an unauthorized activity;
  2. F, M, or J nonimmigrant completes the course of study or program, including any authorized practical training and grade period;
  3. I-94 period of authorized stay expires;
  4. An immigration judge orders the individual removed, excluded, or deported.  

F, M, and J nonimmigrants who failed to maintain status prior to or on August 9, 2018 would start the accrual as of August 9, 2018, unless the accrual period had already begun in accordance with the old policy.

The main concern under the new policy is that the accrual of unlawful presence could now date back to a status violation from months or even years prior resulting in the accrual of unlawful presence that would trigger a bar on admission. USCIS could now determine that a prior, even minor status violation from months or years prior has caused an individual to accrue a period of “unlawful presence” that would trigger a bar on admission, leaving the individual without opportunity to timely fix the situation.

Additionally, the new policy extends to dependent spouses and minor children who through no fault of their own, would also begin to accrue a period of unlawful presence on the same day as the principal F, M, or J nonimmigrant.

Finally, the new interpretation means that the identical regulatory language – admission for “duration of status” – now means different things for similarly-situated nonimmigrants. Like students and exchange visitors, certain other nonimmigrants including journalists, diplomats, international organization employees, and NATO-sponsored visitors are admitted for “D/S” but continue to be governed by the earlier interpretation of “unlawful presence.”

While it has always been important for foreign students and exchange visitors to ensure that they were not violating their status, compliance has become more critical than ever. It is imperative for foreign students and exchange visitors to clearly understand the requirements for maintaining their lawful status and to know which activities are not authorized. Even a minor violation could deem the individual to be unlawfully present and commence the accrual of sufficient unlawful presence to trigger a bar on admission. Foreign students and exchange visitors who fall out of status may request the government for reinstatement, but they have to apply for this relief within a particular timeframe, which further magnifies the importance of being well-informed about all status requirements and timely identifying a status violation.  

International students have felt less welcomed by the United States in the past two years, and many institutions have reported declining international student enrollment. The Travel Ban, the proposals to limit certain practical training for students after graduation, and now this policy change on “unlawful presence” all send a message to international students that they are less welcome in the United States than they used to be. Fewer jobs in America will be the result.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the August 15, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.