New USCIS Draft Policy tough on International students

International students may become deportable on the first day after they finish their course of study, in a new draft policy unveiled by U.S. Citizenship and Immigration Services on May 11. The proposed policy memo would change the way in which international students are found to accrue “unlawful presence,” a determination that could lead to them being barred from the U.S. for three to 10 years.

“USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status,” said USCIS director L. Francis Cissna in a press statement unveiling the draft policy. “The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore,” said Cissna.

Doug Rand, former assistant director for entrepreneurship in the Obama White House who helped implement policies that affect foreign students, told India-West: “This is a pretty dramatic change that could affect more than 1.5 million people per year.”

“For generations, America has been the top destination for students from around the world, many of whom go on to contribute their talents to our economy and even become Americans over time. We should be welcoming the best and brightest — if our country loses its luster, we will lose out on this extraordinary competitive advantage,” stated Rand, the co-founder of Boundless, a technology company that helps families navigate the immigration process. Rand said the proposed policy creates “massive uncertainty” for students who have no “nefarious reasons” for overstaying their student visas.

“I don’t think that anyone believes that the government should turn a blind eye on visa overstays. There are ways to deter the relatively small percentage of students who deliberately and unambiguously overstay their visas, however, without creating major uncertainty for the vast majority who are trying in good faith to play by the rules,” he said.

International students are typically admitted to the U.S. for what’s known as “duration of status,” which means they do not have to leave by a specified date but instead can stay in the U.S. as long as they are do not violate the terms of their immigration status, such as by failing to attend classes or working without authorization. Individuals on J exchange visas — a category that encompasses not only students but also visiting scholars and other types of exchange visitors ranging from au pairs to interns — can either be admitted for a specified time frame or for duration of status, depending on which type of J visa they’re on.

Currently, “unlawful presence” is accrued only after the Department of Homeland Security identifies an international student who has overstayed his F, J, or M visa. But under the new draft policy, individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in unauthorized activity; The day after completing the course of study or program, including any authorized practical training plus any authorized grace period; The day after the I-94 (arrival and departure record) expires; or, The day after an immigration judge, or the Board of Immigration Appeals orders them deported or removed, whether or not the decision is appealed.

Under the new policy, students who have already overstayed their visas and don’t have a pending application to change their status will begin accruing unlawful presence on Aug. 9. Individuals who accrue more than 180 days of unlawful presence in a single stay before departing the U.S. can be barred from returning for a period of three to 10 years.

India and China have the highest number of students enrolled in U.S. universities, but relatively low rates of visa overstays. According to reports, Indian students have a low rate of overstaying their student visas, data released by the Department of Homeland Security said. In 2016, almost 99,000 Indian students studying in the U.S. were expected to depart after finishing their studies; 4,575 overstayed their visas, according to DHS data.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence, said USCIS in the draft memo.


Meanwhile, on another front, the executive branch is planning to make sweeping new changes to the U.S. legal immigration system, including the H-1B visa program and work permits for H4 spouses —quietly and without waiting for Congress. Together these changes could impact the Indian immigrant community in the hundreds of thousands.

The Department of Homeland Security (DHS) is making finishing touches on a proposal to block future work permit applications by H-4 visa holders. There are some 100,000 of these spouses of H-1B workers—mostly Indian women—whose long-term plans have been upended in anticipation of this change.

This whole process can take months or years to complete, and the status quo policy doesn’t change in the meantime. But even just the expectation of future changes can affect people’s lives today.

The U.S. companies and universities are nervous about the official DHS plan to tighten up Optional Practical Training (OPT), a program that currently allows foreign students (predominantly from India and China) to stay in the United States for up to three years of on-the-job training after graduating with a degree in science, technology, engineering, or math (STEM).

All of these plans, first unveiled in the Unified Regulatory Agenda last fall, would effectively nullify prior Obama-era regulations. But the Trump administration has also declared its intention to break entirely new ground through the regulatory process. Many of the heaviest H-1B users are Indian IT outsourcing companies, which have not fared particularly well as targets of Trump administration criticism.

Trump administration’s to-do list keeps growing. Newly announced regulatory plans on the agenda this month include: Making it mandatory to use a new electronic filing system for green card renewals (Form I-90) and naturalization applications (Form N-400), plus other visa application forms in the future, which could affect millions of people seeking visas or U.S. citizenship.

Tightening up eligibility criteria for B-1/B-2 visa applications, which could affect millions of tourists and business travelers hoping to visit the United States. Requiring certain U.S. citizens to provide photographs or other biometric data upon entering or departing the United States. Eliminating the rule that USCIS has only 30 days to process an asylum applicant’s request for a work permit.

Today, Congress remains unlikely to take action on immigration matters (although some moderate House Republicans appear to be doing their level best). And so the Trump administration will seek to transform the legal immigration system through slow-moving but far-reaching regulations—plus a continued flurry of operational changes that aren’t exactly trivial, like a recent policy memo that could generate tremendous uncertainty for some 1.5 million foreign students each year.

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