Raw Deal for Students and Exchange Visitors: USCIS Attempts to Eliminate "Duration of Status"

NEW POLICY FOR STUDENTS AND EXCHANGE VISITORS

U.S. Citizenship and Immigration Services (USCIS) has issued policy guidance stating that people in the United States as students and exchange visitors (F-1, M-1, and J-1) will begin accruing "unlawful presence" after passing the expiration of their program. This runs contrary to a long-standing policy that gave some leniency to students and young people seeking to learn about our country. It's effect reduces options for talented young people, who we traditionally have encouraged to contribute to our country's culture of innovation and entrepreneurship. It's legality is, unsurprisingly, questionable.

Why is this important? The major concern with this change in policy is that unlawful presence (UP) can substantially affect a person's ability to be "admissible" to the United States. A person with six months or more of unlawful presence is "inadmissible" to the United States for three years. We call this the three-year bar. A person with more than a year of unlawful presence is "inadmissible" for ten years: the ten-year bar. 

Admissibility does not just apply to a person outside the U.S. - a person who is "inadmissible" may be unable to pursue certain immigration options even within the U.S.

So, getting unlawful presence, "UP," on a person's immigration record can prevent a person from having the ability to fix their immigration status.

IMPACT OF THE NEW POLICY

This policy means that a person who comes here as student or exchange visitor may have limited options for leaving the country to try to fix their immigration status. This is a big problem, as leaving the country is often a "fix" to minor immigration problems. 

Often, we let a person "wipe the slate clean" if they agree to leave the country and reapply from outside the U.S. 

Why? People in the U.S. have rights. When you leave the U.S. and reapply, you are giving up your rights and asking the U.S. government to reconsider your case anew. It's the "refresh" button on your immigration status.

With the new policy, many people who have made some minor mistakes on their immigration status will be prevented from asking for forgiveness by going to a consulate outside the U.S. Under the new policy, people who leave the country may subject themselves to a "bar" to reentry, and may no longer be able to seek forgiveness for minor immigration infractions.

Also, people in the United States may have the ability to fix their status based on the fact that they were under a "duration of status" and not accruing unlawful presence. This new policy substantially limits those possibilities.

BRASS TACKS

Basically, this new policy means that the Immigration Service is attempting to limit a significant legal protection giving some leniency to students and exchange visitors. This policy of leniency made a lot of sense: many students and exchange visitors, the majority of whom are of a very young age, often in the 20's, may not fully understand immigration provisions (sorry 20-somethings - but please, Streff Legal will give you a free call - so use that opportunity!!).

Basically, the long-standing policy was one way that the immigration laws let minor violations slide, particularly for young people, students, nannies, etc.

However, this policy did not allow overt and blatant violations of immigration law. Even prior to the policy, Immigration Judges could still deport people who flaunted U.S. immigration laws. The old policy gave Immigration Judges some discretion to exercise leniency on young students and exchange visitors. The new policy may not give Immigration Judges much choice. Young people learning about international relations may experience a very harsh and long-lasting lesson in international law. That could prevent our curious international youth from ever being able to return to the United States. So, sorry Einstein, but you'll have to be brilliant elsewhere.

(Wait! Why do we as a country want to turn away the next generation of brilliant people - we won World War II - and maybe the cold war - because Albert Einsten and Werner von Braun decided that the United States was "the place" for innovation.)

LEGALITY OF THE NEW POLICY

This new policy is being made through a memo issued on May 10, 2018 in an open cable. So, no person at the Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), is claiming responsibility, as is usual and customary, though not always the practice. The policy appears to contradict certain legal provisions, such as the provisions for "duration of stay" ("D/S") under the Code of Federal Regulations (CFR) at 8 C.F.R. § 214.2(f)(5) and other legal provisions.

Changing the CFR doesn't require an act of Congress, but it does require a process called "notice and comment" rulemaking, where an organization like USCIS must provide notice to the public and go through a process to change the way the law works. USCIS can make some policy changes, but must go through the rulemaking process to make significant changes in how they implement the law. So, this change, like many others in the current administration, may be subject to legal challenges. (Please see "References" for clarification on rule and comment.)

However, USCIS policy is generally followed unless a court finds otherwise. So, students and visitors with immigration histories that might include staying beyond the parameters of their program may be more seriously affected in USCIS and other decisions by immigration authorities.

So, it is really important for students and exchange visitors who have ventured outside the parameters of their program to seek qualified legal assistance.

AM I GOING TO BE DEPORTED BECAUSE OF THIS POLICY CHANGE?

Immigration and Customs Enforcement (ICE) has been much more aggressively pursuing people who have fallen out of status. The November 20, 2014 policy memo from Secretary of Homeland Security Jeh Johnson told ICE to disregard people who were mere "overstays." The new administration (read President Donald Trump and Attorney General Jeff Sessions) have been largely responsible for rescinding that memo. Enforcement priorities are now much more agressive.

F-1 students, you still get your 60-day "grace period." J-1s, you get 30 days. M-1s, you also get 30-days, but M-1s are top on the list of overstay priorities.

On the other hand, the danger for "overstays" is real and pressing. It will be very likely that ICE could appear at your door. The immigration courts are full of people that used to be protected under the November 20 memo, and students and exchange visitors are a large contingent of the "newcomers" to the immigration courts.

Seek an attorney's help well before your grace period expires. Your options for remaining in the country may take some time to develop. The consequences for overstaying are much more serious. The government no longer looks at "minor infractions" as a minor misjudgment that they might forgive. Current immigration enforcement is increasingly unforgiving.

REFERENCE - AND WHAT CAN I DO?

The USCIS memo was issued on May 10, 2018 under no. PM-602-1060 under the title "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" - Note - this policy memo was published for comment on May 11, 2018, and is still available for Public Comment until June 11, 2018. 

Memo available at USCIS website here.

At the time of publishing of this blog post, USCIS lists the memo as open for comment. However, a search for open documents for comment at www.regulations.gov, where regulations are customarily published for public comment, reveals forty documents of any type, none of which reflect this memo. Typically, www.regulations.gov or the Federal Register would be the appropriate venue for making comment on such a policy. However, USCIS is proposing no change to the regulation which stipulates "duration of status" nor does it appear to provide any public and relevant venue for comment. Publication for notice and comment rulemaking is essential to the validity of the memo as enforceable policy or legal precedent for immigration authorities.

This editor recommends that anyone interested contact their U.S. Senator via that senator's "constituent services" indicating two major issues: (1) the elimination of leniency for students and exchange visitors, and (2) the attempt of the current administrative to circumvent any attempt at "notice and comment" by providing policy that is claimed to be available for public comment without publishing in an appropriate forum such as www.regulations.gov or the Federal Register