By Robert F. Loughran, Partner, Foster LLP – Austin Business Journal
On May 11, U.S. Citizenship and Immigration Services published a new policy memorandum notifying its officers of a change in policy regarding the interpretation and calculation of “unlawful presence” for foreign nationals in the United States as F-1 Students, J-1 Exchange Visitors or M-1 Vocational Students.
The new interpretation upsets 20 years of usage and understanding and can result in innocent errors, administrative glitches and unexpected hardships triggering catastrophic immigration consequences. Foreign scholars that are retroactively found to have had a violation in their immigration history will be subject to removal from the U.S. and then may be banned from returning to the U.S. for as many as 10 years. It has been announced that this new policy will go into effect on Aug. 9 — in time for the upcoming fall semester — and can be expected to lead to anxiety and uncertainty in university and hospital settings, a great many of which rely on international students and foreign medical graduates.
Foreign students and exchange visitors are permitted to remain in the U.S. through the duration of pre-approved studies or exchange programs as long as they comply with the terms of their program, such as attending classes full-time or limiting their work to government pre-approved career activities. These students then have an established grace period to depart the U.S. after their program or work authorization ends — unless they are able to transition to some other type of legal immigration status.
This new rule could have disastrous implications for students who may unwittingly violate their status. The law has long recognized that accidental and innocent violations should be treated differently than intentional status violations or outright fraud. The new rule treats any violation, even if minor or accidental, as a basis to deny immigration benefits and can also lead to the exclusion from the U.S. of otherwise qualified and desirable foreign nationals without an opportunity to resolve the misunderstanding and return to the United States.
It is also foreseeable that when combined with other policies recently enacted by this administration, that it would turn all future interactions with immigration authorities into an anxiety-filled examination of the applicant’s lifelong immigration history to identify any past errors that could lead to the denial of U.S. immigration benefits.
The key change with this policy is that it takes away the requirement that the student be made aware of the status violation and be given an opportunity to cure the issue. Once a violation is discovered it may be too late for any fix — and as a result the exile may be unresolvable.
The U.S. has seen a 7 percent reduction in international student applications since the fall 2016 semester. Many ascribe this reduction in student applications to fear, uncertainty and concern that U.S. immigration policies and procedures are less reliable than in the past and that the treatment of legal immigrants into the U.S. may continue to devolve.
When a foreign scholar or physician is evaluating a multi-year course of study in the U.S., the ability to complete those studies, and the certainty of the opportunities following graduation, weigh heavily on the decision as to the country in which to pursue those studies. For perhaps the past century, the United States has been an elite destination for those seeking higher education and medical training. However, as opportunities and educational capacity and capabilities rise elsewhere in the world, the best and the brightest may now have competitive options closer to home.
Punitive immigration interpretations and lack of predictable immigration rules can be the tipping point that drive these individuals to pursue their educations and their careers in other countries.
Since 2000, nearly 40 percent of all the Nobel prizes won by Americans were won by those that immigrated to the U.S. The Student and Exchange Visitor categories are the immigration categories through which many of these great scientists and physicians first came to America. If through arbitrary and punitive regulations we dissuade future international students from coming to the U.S., how might that effect this pipeline of scholars and their research and training conducted at our universities and hospitals?
Robert F. Loughran is managing partner of Foster LLP’s Austin office and is board certified in immigration and nationality law by the Texas Board of Legal Specialization.