Insider Alert: New Uncertainty for Students and Exchange Visitors

Aug 9, 2018

Student in Library

In what immigration attorneys consider a “radical change,” U.S. Citizenship and Immigration Services (USCIS) has announced a new policy that could make it more difficult for foreign students and exchange visitors in the United States to obtain new visas in the future. This final policy memorandum (technically titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants”) was enacted on August 9, 2018.

IMPORTANT UPDATE: The policy described below was temporarily suspended by a federal judge on May 3, 2019. Until this litigation is resolved, this new policy will not be applied to foreign students and exchange visitors, and the previous longstanding policy will remain in place.

In any event, the new policy should NOT affect most spouses of U.S. citizens who came to the United States on a valid visa and now seek a marriage-based green card. That’s because for spouses of U.S. citizens, the marriage green card application process is the same whether they are undocumented because they “overstayed” their visas or whether they have legal immigration status. (Please note that there are additional barriers for spouses of U.S. citizens who entered the United States illegally, and for spouses of U.S. green card holders.)

What does this change mean?

Under U.S. immigration law, there is a distinction between “violation of status” and “unlawful presence.” Basically, “violation of status” refers to an action that breaks the specific rules under which someone is allowed to be in the United States. “Unlawful presence” refers to a period of unauthorized time in the United States that triggers a particular negative consequence: Individuals who were “unlawfully present” for 180-365 days are barred from entering the United States for three years, while those unlawfully present for over a year are barred from returning for 10 years. (These are often called the “three- and ten-year bars” or just the “re-entry bars.”) This can create a major barrier to obtaining a green card, which often requires applying from abroad.

Up until now, most students (on F-1 or M-1 visas) and exchange visitors (on J-1 visas) did not begin to accrue “unlawful presence” until USCIS made a formal determination or a court began deportation proceedings. Under the new policy, however, “unlawful presence” will commence as soon as they violate their immigration status in any way, including but not limited to:

  • The day after completing a course of study plus any authorized grace period
  • The day after withdrawing from a course of study
  • The day after engaging in an unauthorized activity (such as working in the United States without permission)

In some cases, the student or exchange visitor may not realize that they have triggered one of these events until long after the fact, when they attempt to apply for a new visa. That’s why this new policy could create significant uncertainty for those in the United States on F, J, and M visas (including spouses and children). USCIS estimates that in Fiscal Year 2016, nearly 1.5 million people in these visa categories could have been affected.

Who could be affected?

Here is one example (explained in greater detail by the American Immigration Council):

Imagine a student on an F-1 visa who is authorized to work on campus half-time. One week during her junior year, she inadvertently works a few extra hours. A little over a year later, she and a U.S. employer file the paperwork for an H-1B visa, and USCIS flags this technical violation for the first time and denies the H-1B visa. Under prior policy, the “unlawful presence” clock would start at that moment, giving the student a reasonable amount of time to leave the country, re-apply for her H-1B visa from abroad, and return to the United States. But under the new policy, her unlawful presence would be stretched back to begin in her junior year, barring her from returning to the United States for ten years.

Granted, USCIS revised its final policy so that the unlawful presence clock is “paused” during the time that a student or exchange visitor applies for “reinstatement of status.” But this wouldn’t help our hypothetical student above. As explained by the American Immigration Council: “These changes are of limited utility because they do not address the fundamental ‘gotcha’ problem with the new policy: People who only find out years later that USCIS now considers them to have been out of status and accruing unlawful presence.”

Further reading:

If you need legal advice on these issues, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you.

Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.

To stay up to date on changes throughout the U.S. immigration system, follow Boundless on Twitter or Facebook.

(Note: An earlier version of this post was published on May 15, 2018, highlighting the initial announcement of a draft policy proposal by USCIS.)

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