In a new lawsuit filed in the U.S. District Court, several institutions of higher education have challenged a recently announced Trump administration policy, effective August 9, 2018, changing the calculation of the number of days of “unlawful presence” for nonimmigrant foreign students from the date U.S. Citizenship and Immigration Services (USCIS) or an immigration judge finds a violation or orders the student removed to the date the status lapsed.
Since 1997, the United States adopted a clear policy governing the implementation of the immigration statute. It established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided individuals an opportunity to cure their violations or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.
Most international students enter the United States on F or M visas, while some enter on J visas, many international researchers, scholars, and professors at higher education and research institutions enter the country on J visas for exchange visitors. In general, when F, J, or M visa holders enter the country, they are not supplied with a “date certain” on which they must depart. Rather, their visas are valid for the “duration of status,” or “D/S.” For more than two decades, the United States has held that the unlawful presence clock for these individuals begins on the day after a government official or immigration judge adjudicates the individual as out-of-status, i e when visa holder is provided clear notice that the government believes that the individual is out-of-status.
Now, based on the August 9, 2018, USCIS memorandum, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on which the agency concludes that the visa holder first fell out-of-status. The complaint states that the immigration system “is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits.” Thus, the new policy’s use of a backdated unlawful-presence clock “will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure,” the complaint states. “This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.” Moreover, by disrupting the ability of these individuals to continue studying at their schools, or continuing their research, teaching, or other scholarly pursuits, the August 2018 policy memorandum will result in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees.