On August 9, 2018, a new policy memorandum by U.S. Citizenship and Immigration Services (USCIS) took effect, reversing over 20 years of policy and changing how the government will calculate unlawful presence for noncitizens in the U.S. on nonimmigrant (temporary) F or M student visas, or on J “exchange visitor” visas.
This will affect not only these nonimmigrant visa holders, but also employers who may want to hire them and help them get a work visa or permanent residency.
Under U.S. immigration law, those who violate the terms of their nonimmigrant visas in any way, with limited exceptions, become ineligible to transition from one nonimmigrant visa to another or to U.S. permanent residency from inside the U.S. Instead, as a penalty for the visa violation, they must get their new visas at a U.S. consulate abroad, typically in their home countries.
Generally, violating one’s visa makes the visa holder unlawfully present as of the date of the violation. Also, anyone unlawfully present for over 180 days who leaves the U.S. for any reason, even to get a visa at the U.S. consulate, cannot return to the U.S. for three years. A person unlawfully present for one year or more cannot return for 10 years if s/he departs the U.S. A waiver of these 3 and 10 year penalties is available, but only to those who have a U.S. citizen or permanent resident spouse or parent and meet additional eligibility criteria.
Most F and M foreign students and J exchange visitors are admitted to the U.S. for “duration of status” (D/S), and have no set date by which they are supposed to leave. This allows a foreign student who entered initially to get her bachelor’s degree to remain without difficulty if she decides then to pursue a master’s degree. For F, M, and J visa holders with D/S, even if they somehow violated the terms of their visas, under longstanding USCIS policy, they did not accrue any unlawful presence until the date USCIS or an immigration judge officially found a visa violation. This meant that in most cases, an F, M or J visa holder would be able get permanent residency without needing to leave the U.S., or at least without having accrued enough unlawful presence to trigger the 3 or 10 year bars to reentry.
Effective August 9, 2018, USCIS now takes the position that any F, M, or J visa holder who violates the terms of her/his visa will begin accruing unlawful presence the day after the visa violation. For those who violated their visas before the policy change, unlawful presence starts accruing automatically on August 9, 2018. A USCIS or immigration judge finding of a violation will no longer be needed for unlawful presence to begin. Some exceptions will apply to a student who petitions for reinstatement to student status after violating his/her visa.
- How will this rule change prejudice F, M and J visa holders, and affect employers who want them as employees?
It is extremely easy for foreign students and exchange visitors to violate the terms of their visas. For example, a student who drops below a full course load for one semester, or who has an allowed on-campus job but just once exceeds the 20 hours per week work limit, would have violated her or his student visa. Under the new policy, unlawful presence will start to accrue, without the student necessarily even being aware of it, on the day the extra hours were worked or the first day that the student’s course load dropped below full-time. If, more than 180 days later, the student leaves the U.S., for instance to visit family during the summer break, s/he will trigger the 3 year bar and be unable to return to complete her or his studies.
Similarly, suppose the student has not left the U.S., but the violation occurred during the student’s junior year. The student continues her/his studies, graduates, and begins optional practical training (OPT) with an employer. The employer wants to keep the student as a permanent employee and petitions USCIS to help her/him get residency through the job. When the student finally goes to the permanent residency interview, under the new policy, USCIS will rule that s/he violated her status years ago and deny the residency application. The student instead would have to apply for an immigrant visa at the appropriate U.S. consulate abroad, but doing so will trigger the 10 bar to returning as soon as s/he leaves the U.S. to attend a consular interview. The employer will lose a valued employee because s/he cannot return for 10 years, and is unlikely to be eligible for a waiver. This change will also apply to the principal visa holder’s spouse or child, even if that person never violated her/his visa in any way.
You can get more information on this rule change and its impact here.
The U.S. labor supply is aging and our country needs immigrant workers. But rather than ease the path for F, M, and J visa holders to be able to stay in the U.S., the administration is creating yet another barrier. In contrast, countries such as Canada are dealing with their shrinking labor pool by liberalizing their immigration laws in order to make it easier and faster for foreign higher education and graduate students to gain permanent status in the country following their graduation. It is likely not a coincidence that Canada is seeing double digit increases in the number of foreign students enrolling at Canadian universities
Once again, an immigration reform by the current administration is at odds with the country’s economic reality.