USCIS issued a policy memorandum on May 10, 2018, proposing to dramatically change its long-standing interpretation of when certain foreign students and exchange visitors are considered to have overstayed their U.S. admission. The effect, if finalized as proposed, would be to cause perhaps thousands of foreign student and exchange visitor overstays to become subject to a 10 year bar on readmission to the U.S. The proposal would also deem students and exchange visitors to have ended their lawful U.S. presence as of the date of any behavior inconsistent with status (e.g., a student innocently dropping below full time enrollment). The proposal is scheduled to become final on August 9, 2018.
USCIS’s longstanding policy has been that students and exchange visitors in the F (academic student), J (exchange visitor), and M (vocational student) visa categories may be admitted to the U.S. for as long as they pursue the purpose of their admission. This is known as a “duration of status” admission, which does not end on a date certain. Because overstaying the end date of a nonimmigrant period of admission can lead to a 3 or 10 year bar on returning to the U.S. after departure, the 3% - 11% of students and exchange visitors who have remained in the U.S. beyond their program end date are able to avoid a penalty applicable to most other nonimmigrant classifications.
Although out of status students and exchange visitors (i.e. those who worked without authorization or stayed after the end of their programs) have always been subject to removal (deportation), they have not been considered overstaying their period of admission for purposes of the 3 and 10 year inadmissibility bars. These individuals currently begin to accrue unlawful presence only after USCIS or an immigration judge determines there to have been a status violation.
Under the proposed policy, foreign students and exchange visitors in F, J, and M status violating the terms of their admission will begin to accrue unlawful present (be considered to have stayed beyond their date of admission) as of the date their status violation occurred. As a result of this change in policy, students and exchange visitors can accidently and unknowingly violate their status, for example, by dropping slightly below a full course of study by taking on a reduced course load. The student would start accruing unlawful presence from the day after this status violation. Likewise, a student who works without authorization would begin to count unlawfully present days effective the first date of employment.
Individuals who accrue more than 180 or 365 days unlawful presence and who then depart the U.S., are subject to, respectively, 3 year and 10 year bars to admission as immigrants or nonimmigrants unless they first receive a waiver. Although nonimmigrant waivers for the 3 year bar are more or less reasonably approved, waiver of the 10 year bar is granted only in very narrow circumstances.
As noted, the policy memorandum remains a proposal, albeit one highly likely to go into effect on August 9, 2018. In light of strenuous opposition from the higher education community and other advocacy groups, the proposal will, hopefully, be scaled back to avoid unduly punishing innocent behaviors.