USCIS has posted a policy memorandum that will radically change current policy for students and exchange visitors.  The policy makes it much more likely that those in F, M or J status will find themselves accruing unlawful presence and becoming subject to three and ten-year bars to admission.

Under current policy there is a distinction between violating visa status and unlawful presence. Status violations include, among other things, unauthorized employment or participating in activities not authorized by the individual’s visa status.  Unlawful presence accrues when an individual stays in the United States beyond the date granted upon entry.  Unlike those in other nonimmigrant visa statuses, students and exchange visitors generally are not given a specific “end date” when they enter the U.S.  Instead, they are generally admitted for the Duration of Status (D/S), i.e., the length of their programs.  Under current policy, because they are issued no specific end date to their statuses, they cannot start accruing unlawful presence unless USCIS actually makes a formal finding of a violation of status or they are ordered removed, deported or excluded.

Now a simple violation of status (knowing or unknowing) without any formal finding can start the clock for unlawful presence.

According to the memo:

  • As of August 9, 2018, individuals in F,M or J status who have not been maintaining status will start accruing unlawful presence;
  • Individuals who fail to maintain status on or after August 9, 2018 will start accruing unlawful presence on the earliest of:
    • The day after they are no longer pursuing the authorized activity;
    • The day after they engage in unauthorized activity;
    • The day after completing the course of study or program including authorized practical training plus any authorized grace period;
    • The day after their I-94 expires (if one was issued with a date certain); or
    • The day after they are ordered excluded, deported or removed.

USCIS has stated that this new policy aligns with President Trump’s Enhancing Public Safety in the Interior of the United States Executive Order which directs strict enforcement of all immigration laws.  It is also in accord with the Buy American, Hire American Executive Order which restricts immigration in an effort to protect the U.S. workforce.   The Trump Administration has made it clear that it has concerns about students who work in the United States post-graduation on the basis of Optional, STEM or Curricular Practical Training.  For example, in the DHS Spring 2018 Regulatory Agenda, one of the items listed is Practical Training Reform to protect “U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas” and “to reduce fraud and abuse.”

The three- and ten-years bars to re-admission set out in Section 212(a)(9)(B) of the Immigration and Nationality Act (INA) are quite draconian.  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.  Waiver of the bars may be possible only in certain circumstances of extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident.

USCIS is accepting comments on the new policy memorandum until June 11, 2018. Jackson Lewis will continue to provide updates regarding enforcement of the proposed policy.

 

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.