A policy memo from the U.S. Citizenship and Immigration Services that went into effect earlier this month is cause for concern for international students.
It’s part of the Trump administration’s stated efforts to curtail all types of immigration, this time focusing enforcement on those who overstay or violate student visa rules.
As Tahmina Watson of Watson Immigration Law explains, international students will now begin accruing what’s called “unlawful presence” more quickly, and face deportation in more cases. Seattle Globalist co-founder Alex Stonehill spoke with Watson to get clarity on what the new rules mean and how international students should respond.
Listen to their full conversation the podcast, and read edited excerpts below:
Can you tell us in a nutshell about the recent change to student visa enforcement and how that might impact international students?
So “unlawful presence” is what it’s called is when you’re in the US without status. And if you’ve been unlawfully present for more than six months, you then incur a legal bar from returning. If you incur between six and 12 months [of unlawful presence] and you leave the country you cannot come back for three years. If you incur 12 plus months of unlawful status you cannot come back for 10 years…. So, in terms of the students, typically one has not been considered unlawfully present until an adjudication or a judge had made that determination. But this new policy is making it draconian, saying that essentially the day after you have been found to violate your status, you are now accruing unlawful status.
So for instance if I was studying as an undergraduate international student and I didn’t take classes for a semester, and then I finished my degree and went back to study as a for a master’s degree, or applied to get a work visa, they could look back and say “oh, you were unlawfully present for that time that you weren’t studying,” and reject my new visa or even deport me. Is that correct?
Yes. Within the school there is also a mechanism. Every student will have an international student number and the international department in the school has a duty to report to ICE whether this person is maintaining status or not.
But essentially the government says, “we have better ways of tracking who’s maintaining status or not.” And in this policy memo they estimate that there are perhaps 6.9 percent of students who don’t maintain F1 status, 3.8 percent that don’t maintain J visa status and 11.6 percent that are not maintaining their M visa status. They’ve pinpointed some numbers to justify why they are making these changes. It’s really a low hanging fruit in many ways because it’s part of a bigger mission that they have. One of the goals for this administration is to find ways to curtail immigration in all avenues.
So what exactly do the changes mean for international students?
The important changes are the ones that are about unlawful presence after August 9th, 2018. They come in four ways, but the the first two are very important:
The day after the student no longer studies the course that they were meant to study, they will then become unlawfully present. This could happen sometimes inadvertently. Maybe a student has forgotten to pay a fee, or they haven’t spoken to their teacher. There are a number of things that could happen within a school, maybe an administrative error, and so on paper it could look like the person is no longer pursuing their course of study. So the student now has to be ultra-careful in taking care of their status.
A second point about unauthorized activity is working [which is prohibited in most cases under most student visas]. It could be that your work is in a gray area, you know. I speak with people who say “well I’m just volunteering here. I’m not getting paid.” But if another person, an American worker, would actually get paid to do that job, then that volunteer position is unlawful work. So these gray areas have always traditionally been a problem, but going forward for students it is going to be a bigger risk than it has ever has been.
The second important change is that, the day after completing the course or any practical training and any grace period, one will start accruing unlawful presence. So what does that mean? If you completed the course, on any one of these visa you’ll have grace periods — meaning that when you finish the course you have amount of days to hang around, wrap up and then leave and that grace period is completely fine. For example J visa holders have thirty days. But what the government is saying is, if you’ve completed your course and you’ve completed your grace period and haven’t left, you are now automatically accruing unlawful presence.
So the big change is how aggressively they’re they’re coming after you? Where past administrations might have been lenient when these statuses lapse, in this case they’re starting to enforce that more aggressively. Is that right?
Absolutely, that’s right. Yes. And then the and the third one is that the day are after the I-94 [student visa form] expires (if there was an actual date on it) that’s when you become unlawfully present. And the last one is, sometimes a judge will make a determination and procedurally one is allowed to appeal the decision. And now the government is saying that even while you appeal that decision, we are going to consider your status unlawfully present.
Now all of these different ways you might become unlawfully present can lead to one thing: detention.
So the bottom line is international students need to be much more careful to not fall out of status accidentally, because if they do they’re they’re facing removal proceedings and possibly ending up detained and then deported?
That’s right. So now students have to be acutely aware of what their status is. How long do I have to stay here? And what are the things that will get me out of status. So my recommendation would be to talk to the international student department at your school, so that they can give you a 101 of what might makes them fall out of status.
We’re almost out of time. But I want to ask you one more big-picture question: from a devil’s advocate standpoint, isn’t it good to be enforcing that these rules as they stand, and to be holding international students to the laws are written? What do we lose from this more aggressive enforcement?
That’s a really good question. You know as a lawyer you know I want people to maintain status and they want them to follow the law.
But what we have seen with this administration over and over and over again is arbitrary decisions. And these arbitrary decisions that they’re making are affecting immigration as a whole. Schools will find that students don’t want to come here anymore. And there is already a drastic drop in the number of international students that are coming to the U.S.. These students contribute to the future of America. They’re contributing to the economy. There are many statistics to show how beneficial international students are. So when arbitrary rules are put into place it affects not just the student, it actually affects an entire ecosystem.
I think what we will see in 2019 is that schools are going to be struggling to get students. People will essentially say well America’s no longer the place for us to go and get our education. Because I can get it in Canada, and they actually want me.