New USCIS Policy May Block Students & Exchange Visitors

Unlike most nonimmigrant foreign nationals, students who are in the United States for academic programs are not subject to specific dates for their visa. Because academic programs or projects end according to multiple variables, foreign students have a "duration of status"—essentially a flexible length of stay that allows them to finish what they started. This protects them from having to choose between finishing a degree or accruing "unlawful presence" time on their record.

That may no longer be the case, thanks to a USCIS policy that changes what constitutes unlawful presence for foreign students and exchange nationals.

According to a USCIS memo issued earlier this month, the agency will begin calculating "unlawful presence" time the day after a foreign student commits a status violation. Keep in mind that many students may not even be aware that they've committed a status violation. Some students may be accruing unlawful presence time on their record right now. Unknowingly having unlawful presence time on the record could be crippling to a student's future: US law dictates that having 6 months to a year of unlawful time on your record would bar you from returning within 3 years.

If an unaware student accrues more than a year of unlawful presence on their record, they will be barred from returning for a decade. Students who have spouses or adult children will also be considered unlawfully present if their status relies on the lawful status of the student.

5 Months to Act on Falling Out of Status

There's a chance for students to clear their record of unlawful presence days—but only if they act quickly. According to the policy, students have 5 months from the date of the status violation to file for reinstatement. If the reinstatement application is accepted, then the student will not accrue unlawful presence days while the application is pending.

However, even this rule doesn't address the root issue of this policy: people can spend years in the United States on an academic visa and never know that they're out of status. Other students may attempt to return only to find out that they're barred from re-entering the US for a decade due to status violation they never knew about.

While the Department of Homeland Security's data suggests that academic overstays are a problem, a closer look reveals that academic overstays are a fairly benign phenomenon. More than half of academic "overstays" who remained in the U.S. for 60 days or longer overstayed for little over a week past their authorization date. The DHS also recorded as overstays students who might have received an extension or received a green card.

The United States has always prided itself on being the landing pad for the world's most brilliant and ambitious learners. People come to our country from all over the world to study in our universities, and many of them choose to stay and allow our nation to benefit from their intellectual generosity. In short, foreign students make all of us better.

Policies like this only serve to drive away the very people our country needs right now.

If you are a foreign student and you've been accruing unlawful presence time since August 9, speak with our New Jersey immigration attorney as soon as possible. With our guidance, we can file a reinstatement application and keep you from being barred from re-entering the United States. Call (800) 909-8129 or contact us online today.