President Donald Trump’s administration has published a final regulation tightening the rules that govern the work of foreign students in the United States.
Those who study under F, J or M visas will have less leeway when it comes to “unlawful presence” due to violating the terms of their visas, according to U.S. Citizenship and Immigration Services (USCIS).
“As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories,” USCIS Director Francis Cissna said in a statement.
“USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws. People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”
The change deals with visa holders who drop out of school, fail to maintain the minimum number of academic credits, or violate some other condition of remaining a student in good standing.
Under the old rules, foreign visa holders did not automatically start accruing “unlawful status” until after the government formally notified them. Under the rule finalized last week — after a public comment period — the clock starts ticking immediately after foreign students fall out of compliance.
Jessica Vaughan, director of policies studies at the Center for Immigration Studies (CIS), said the change — combined with a more narrow interpretation of other rules — will make it harder for foreign students to adjust their status to permanent residency.
“Under a strict interpretation of the rules, this is definitely going to cut off a path to a green card for some foreign students.”
“Under a strict interpretation of the rules, this is definitely going to cut off a path to a green card for some foreign students,” she said.
Vaughan said the change represents one more way the administration is reversing lax interpretation of statutes by its predecessors, which she argued tolerated loopholes.
“This is a sign that the Trump administration is returning to the letter of the law and the intent of the law,” she said.
But immigration advocates already have announced plans to block the rule change in court.
David Leopold, a Cleveland lawyer, told Bloomberg it would “tighten the screws” and make the United States less attractive to foreign students.
“Why are we trying to make America less hospitable and close the doors to people who ultimately will be boosting our economy?” he told the news service.
Matthew O’Brien, director of research at the Federation for American Immigration Reform (FAIR), said the old rule dates to an era when foreign students often would have to travel great distances to a government office in order adjust their status.
“Duration of status was implemented before there were computer systems … It’s an artifact of an old system,” he said.
An annual report released last week indicates that foreigners on student visas have among the highest rates of visa overstays of any category. Some 4.15 percent of the 1.66 million people who entered on student visas stayed behind during the authorized window of departure in fiscal year 2017, according to the report.
“I think it’s great that USCIS is trying to update its procedures to reflect current national security concerns,” O’Brien said.
When “unlawful presence” begins is important because it affects when foreigners are subject to rules blocking them from re-entering the country if they return home. Under federal law, foreigners generally cannot obtain green cards if they have lived illegally in the United States for more 180 days. After living in America longer than a year, that penalty jumps to 10 years.
Vaughan said that traditionally there have been few consequences for foreign students violating the terms of their visas.
“In so many of these student visas, they were never found by ICE,” she said. “They could, basically, get away with living here unless they encountered ICE.”
Said O’Brien, “There was way too much discretion built into this in the first place.”