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The government is forging ahead with a new policy that changes the way international students and exchange visitors are penalized if they violate the terms of their visas.
The Aug. 9 final version of U.S. Citizenship and Immigration Services’ policy memorandum follows closely on the heels of a new report finding that the foreign nationals in the F, M, and J visa categories overstay their visas at higher rates than others issued temporary visas.
The suspected overstay rate for F, M, and J visa holders was 4.15 percent in fiscal year 2017, according to the Department of Homeland Security. That figure encompasses both those who remain in the U.S. and those who overstayed their visas but eventually left the country.
By contrast, foreign nationals from countries that don’t participate in the Visa Waiver Program who were on business or pleasure visitor visas in FY 2017 overstayed their visas at a rate of 2.06 percent.
The new policy could have an impact in the tech and health-care fields, as many medical residents complete their training on J visas. Hundreds of thousands of students on F visas also work at various locations under a postgraduate training program for workers with science, technology, engineering, and mathematics degrees.
“Given the demonstrated national security risks associated with international students since the September 11, 2001 terrorist attacks, USCIS should be applauded for updating the student and exchange visitor regulations to reflect current national security priorities and operational realities,” Matt O’Brien, director of research for the Federation for American Immigration Reform, said in a statement emailed to Bloomberg Law Aug. 10.
FAIR advocates for lower immigration levels.
“USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws,” Director L. Francis Cissna said in an Aug. 9 statement. “People who overstay or violate the terms of their visas should not remain in the United States,” he said.
But immigration attorneys see the new policy as part of a broader agenda to keep international students out of the U.S. The policy memo, originally released in May, is already on the list of potential targets for litigation by a new task force of the American Immigration Lawyers Association.
The policy is a “way to tighten the screws” to “make America a less attractive place to study and do exchange visitor work,” David Leopold of Ulmer & Berne in Cleveland told Bloomberg Law Aug. 10. “Why are we trying to make America less hospitable and close the doors to people who ultimately will be boosting our economy?”
The new policy says international students on F or M visas or exchange visitors on J visas start earning “unlawful presence” on the day their visas are violated. Under prior agency policy, they only would start to earn unlawful presence once the USCIS made a formal finding that they had violated the terms of their visas.
Depending on how much unlawful presence an immigrant has earned, he or she could be banned from applying for another visa for three or 10 years.
“This policy change aims to reduce the number of overstays and improve how USCIS implements the unlawful presence grounds of inadmissibility,” an agency spokesman told Bloomberg Law Aug. 10. “Certain individual countries have far higher total overstay rates for these visa categories, some more than 20 percent,” he said.
The finalized memo makes a slight change from the original, which came out in May. Unlawful presence will be suspended for F, M, or J visa holders who apply for reinstatement of their visas within five months of losing their status, the new memo says.
“USCIS is not required to solicit public comment on the policy memos under the Administrative Procedure Act,” the USCIS spokesman said. “A change was made because the public feedback included constructive feedback that improves the policy,” he said.
“It’s a tweak,” but “it doesn’t go far enough,” said Leopold, a past president and past general counsel of AILA.
The “real problem” with the new policy is it’s “a surreptitious way to tag students with unlawful presence,” he said.
“Everybody agrees” that you shouldn’t work in the U.S. without authorization, Leopold said. But what the law considers authorized and unauthorized is complicated and not necessarily self-intuitive, he said.
“You’re talking about banishing somebody from the United States for what may be a technical violation,” Leopold said. That’s a “far cry” from punishing those who know they’re supposed to leave on a certain date and don’t, he said.
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