The USCIS issued a Policy Memorandum that has major consequences for students and their family members who are in the U.S. on F, J, and M statuses.
The new Policy penalizes students who’s course load falls below full time or who violate the terms of the student status by working without authorization. The effective date of this new policy is August 9, 2018.
Old Policy: Foreign students who enter the U.S. for duration of status (“D/S”) are allowed to be in the U.S. so long as they remain in school and do not work. Those who overstay their welcome or do not maintain a minimum course load, are considered “out of status.” However, the penalties for being out of status are relatively slight. For example, a foreigner can depart the U.S. and eventually immigrate back to the U.S. on a green card without penalty. Also, someone who fell out of status cannot get back into status by changing to another status such as a work status, an H1-B status, for example.
New Policy: A foreign student who does not maintain a full course load or who works without proper authorization will become “unlawfully present” in the U.S. and not simply “out of status.” The difference is notable. A person who accrues unlawful presence in the U.S. more than 180 days will suffer a 3 year bar that triggers upon departure from the U.S. Unlawful presence of one year or longer triggers a 10 year bar from the U.S. A bar waiver is possible, but not easy to obtain.
Typically, a bar waiver to immigrate back to the U.S. needs a qualifying relative, such as a spouse or parent who is a U.S. citizen. Employers would not be able to help obtain a bar waiver to bring an employee into the U.S. There can be possibilities for non-immigrant workers, but generally a foreigner who is barred for unlawful presence will have great difficulty coming back to the U.S. anytime soon.
Naturally, there are still grace periods for those who complete degrees or course studies and who apply for a change of status and do not go out of status. This change in policy targets those who fail to follow the guidelines of the student status terms.
I expect there will be litigation regarding this new policy because it is not always clear when a status is terminated. What happens when a student is hospitalized and cannot be reinstated in school, or when a person does volunteer work that the USCIS deems to be a violation of authorized work? If the student is allowed into the U.S. and not given a date certain when to depart, it can be confusing for the student to know when he or she should leave or should have left. The old policy required that the USCIS should mail a notice to depart to the student. The new policy makes immigration tougher, but also can create inequities for those foreigners who are not given a clear notice and who pay expensive foreign tuition to attend school in the U.S.
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