By Dena Wurman, MPA, JD
May 25, 2018
The US Immigration service is tightening the rule on F, J and M non-immigrant students who remain in the US after completing their studies, without any legal immigration status. This new rule will become effective on August 9, 2018. The change will automatically take effect for out of status students.
The purpose of this new rule is to tighten up a loophole allowing a minority of students to stay in the US who had no pending immigration matters that could trigger a denial.
WHAT IS STATUS?
“Status” and “unlawful presence” in immigration law are very different concepts.
The distinction between status and presence has important consequences that may determine whether an immigrant has the opportunity to become a permanent resident or US citizen.
An immigrant is out of status when no formal decision has been made by the government but they remain in the US after the expiration of their visa.
A student who overstays a visa is considered to be out of status. The immigration service calculated in 2016 that between four and 12% of all F, J and M students were overstays in the US, of a total of 1.4 million admitted. This is roughly 175,906 students of the 2016 group measured who were expected to change status or depart.
Before the new change takes effect in August of this year, students (and their dependents) were allowed to stay in the US for “duration of status” or until their I-94 document expired. These students were not considered unlawfully present until there was a formal adjudication – by the immigration service or an immigration judge – which then required them to leave the country.
Unlawful presence is a term of art with very harsh consequence that arise from an action (or inaction) a student may or may not know is illegal. Over staying after a student visa ends now has minimal effect.
Until the new rule takes effect, unlawful presence starts on the date an officer, judge or an administrative court determines there has been a violation of an immigration law.
After this decision is made, unlawful presence begins and the clock starts ticking. If the time reaches a certain point, and the immigrant eventually departs, there may be a very long wait before the US government permits re-entry to the US.
For example, individuals who have accrued more than 180 days of unlawful presence in the US, and then depart, may be subject to 3-year or 10-year bars to (re)admission. Individuals who depart and re-enter after accruing more than one year of unlawful presence are permanently inadmissible.
THE NEW TRIGGER
When this new rule takes effect August 9, 2018. F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several other scenarios.
WHAT THE EFFECT WILL BE ON GETTING A GREEN CARD
An issue not included in the guidance but one that may impact students is their ability to adjust status later in the US.
For example, a student who was an overstay could, prior to August 2018, get a green card as the spouse of a US citizen merely by entering legally (as a student) and overstaying without any adverse legal event occurring. This overstay would be forgiven if the application were to be sponsored by a UC citizen spouse.
Now, an overstay will automatically convert to unlawful presence on August 9, 2018.
The new rule may prevent any number of overstay students now in the US who may wish to later marry a US citizen from getting a green card and becoming US citizens.