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Students and Exchange Visitors on F, J and M Visas - Unlawful Presence Policy Update

2017 saw tougher immigration policies and increased tuition fees contribute to a sharp decline in the international student’s enrollment into the American universities and colleges, cutting down both number of foreign students in the American schools as well as billion of dollars in revenue they brought in as tuition fees, living expenses and related contributions. Several American Universities are cutting down programs and courses offered in order to deal with the deficit. The current immigration policy revision affects the students and Exchange Visitors and provides further impetus to the declining trend of foreign student enrollments.

The new guidance regarding revision of immigration policy for F, J and M immigrants (students Immigrants) is scheduled to come into effect on August 9, 2018. U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” in alignment with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States

The policy bundles up the two separate categories of ‘violation of status’ of an immigrant and ‘being unlawfully present’ in the assessment towards initiating removal proceeding (i.e. "deportation") on these grounds for student immigrants. Elizabeth Redden explains in her article that ‘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.’  Further, there has been a prior understanding that students be granted a grace period of 30-60 days following completion of their studies before they must return to their countries or risk accruing unlawful presence.

The new policy modifies this former approach and reaffirms the current law, as now in effect regarding several ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. 

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 an 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 expires; or

·        The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed.

The new policy guidance states that international students and exchange visitors could begin accruing unlawful presence the day after they violated the terms of their immigration status, rather than the day after the Department of Homeland Security or a judge issued a formal finding of wrongdoing.  Individuals who accrue 180 days, but less than one year of unlawful presence can be barred from returning to the United States for three years.  Those with more than one year of unlawful presence may be barred for ten years. 

According to the Department of Homeland Security there were about 6 percent of non-immigrant F, J and M visa holders that may have overstayed, however experts are looking it as an excessive measure on the remaining 94 percent who are lawfully pursuing their education and bringing billion of dollar in revenue to the American economy and educational institutions.

The USCIS Policy Memorandum is available for comment until the June 11, 2018.