USCIS Modifies Unlawful Presence Policy for Foreign Students, Exchange Workers

USCIS Modifies Unlawful Presence Policy for Foreign Students, Exchange Workers

Foreign national students and exchange workers have been given a little breathing room in a new policy memo. It provides a grace period while they apply for reinstatement if they have fallen out of status and overstayed their visa.

The memo from U.S. Citizenship and Immigration Services (USCIS) clarifies that students and exchange visitors who hold F, J and M visas and have violated the terms of their status will not accrue “unlawful presence” while their applications are pending if they file for reinstatement in a timely manner.

The memo amends an earlier policy guidance proposing changes in how the agency calculates unlawful presence for students and exchange visitors. Unlawful presence refers to someone being in the United States without proper authorization and can include instances where the person has remained in the U.S. after their duration of status has expired or entered the country illegally.

As of Aug. 9, when the policy took effect, F, J and M visa holders who violate the terms of their status will be considered unlawfully present the day after the violation occurs. Violations that occurred before Aug. 9 will begin to accrue unlawful presence from that date. Previously, unlawful presence was triggered only when USCIS formally processed a visa overstay or a judge issued a deportation order.

The consequences of unlawful presence are significant, said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management.

In May, after USCIS issued the draft proposal, 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.”

“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. “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,” said Rand.

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