Rules Change for International Students

On May 10, U.S. Citizenship and Immigration Services (USCIS) quietly made important changes to international student visas. A policy memorandum titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” states that effective August 9, those in the U.S. on those visas will begin to accrue time for unlawful presence on the day that their visas expire or they violate the terms of their visa. In the past, those who overstayed their visas would simply be out of status and didn’t start accumulating unlawful presence time until a formal decision was issued by an Immigration Judge or a USCIS officer. The difference matters because those who have accumulated more than 180 days of unlawful presence could be barred from returning to the United States for three to ten years, depending on exactly how many days of unlawful presence they have accumulated by the time they leave the United States.

The change is consistent with the Trump Administration approach, which treats an immigrant as a lawbreaker the minute he or she is in the country without authorization.  According to USCIS Director L. Francis Cissna, “The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”

F, J, and M visas are student visas that last until the holders complete their studies, which means they aren’t necessarily bound by a set timeline. That puts the onus on students to zealously make sure that all of their activities in the United States stay within the restrictions of their visa category, even when it isn’t clear when those restrictions might apply and whether a USCIS office, an Immigration Judge, or a consular official might one day judge the situation differently. 

Universities have been hurt by the Trump Administration’s antagonistic stance toward immigrants, and this will make things worse as the visa could become the instrument of a student’s long-term expulsion from the States. As attorney Cyrus D. Mehta writes:

Under the new policy, a nonimmigrant in F, J or M status may have unwittingly violated that status by not pursuing a full course of study or engaging in an unauthorized activity, and may never get notice of it until much later. Even F-1 students in post-completion practical training could potentially be deemed later to have engaged in unauthorized activity, such as not working in an area consistent with their field of study or a STEM trainee being placed at a third party client site, which USCIS has without notice abruptly disfavored,   or if a school’s curricular practical training does not meet the USCIS’s subjective interpretation of whether the school was in compliance when it authorized such training.  

Now more than ever, it is important for international students in the country on one of the affected visas to work with their Designated School Official (DSO) to make sure that they remain inside the conditions of their visas. DSOs need to know about any changes to course loads and additional activities. Negative consequences will come quickly starting August 9, and the punishments can be life-changing. 

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