Immigration and Customs Enforcement (ICE) continues to push forward a proposed rule that would set a maximum period of authorized stay for students. Although the details of the rule are unknown, the draft reportedly has been sent to the federal budget office for review. This is generally the last step before a new rule is published for notice and comment.

In May 2018, USCIS posted a policy memorandum that would have radically changed current immigration policy for students. Until that time, students usually were admitted not for a specific length of time but for the Duration of Status (D/S), i.e., the length of their programs. Because they had no specific “end date,” students could not accrue “unlawful presence” without a formal finding. In addition, if students violated their student status, for example, by working without proper authorization or by not taking enough courses, they would not be charged with unlawful presence. But the 2018 “sub-regulatory” policy memorandum changed that. Those who violated their student status would immediately start accruing unlawful presence and, if they accrued 180 days or more, they would become subject to the draconian three- and 10-year bars to admission.

Primarily because the new policy made it so easy for students to unknowingly start accumulating unlawful presence, it was challenged in court. The judge in Guilford College v. Wolf issued a nationwide injunction, holding USCIS could not make this sort of policy change without engaging in a proper rulemaking process. The judge also held the new policy conflicted with the text of the Immigration and Nationality Act (INA).

In addition to the 2018 policy memorandum, in October 2018, the Trump Administration for the first time published a notice of its intention to enact a new rule that would put an end to Duration of Status and would set out a maximum period of authorized stay for students. The stated purpose was to eliminate confusion about a student’s length of stay and therefore alleviate overstays by students. From the perspective of students and universities, this change would create difficult problems:

  • Students could lose the flexibility necessary to move through various levels of study and shift their research goals;
  • Every program change could require an application for an extension, which will be costly and would risk denial; and
  • The additional scrutiny and uncertainty would make study in the U.S. for foreign nationals less appealing, which could result in a loss of talent and a loss of income for colleges and universities.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.