Effective August 9, 2018, USCIS launched another salvo in its war on legal immigration.  Under a new policy memo, USCIS will now consider an F, J or M nonimmigrant visa holder to be in a period of “unlawful presence” commencing the day after he or she violates the terms of his or status.

Why is this a big deal?  Because federal law provides that an individual who has accrued 180 days of “unlawful presence” is barred from re-entering the U.S. for 3 years; for those with 365 days or more of unlawful presence, the bar is 10 years.  So the timing of when unlawful presence is triggered can have enormous consequences for an F, J, or M nonimmigrant.  Most nonimmigrants are admitted to a specific date, and are on notice that they will begin to accrue unlawful presence if they stay beyond that date, beginning the day after that end date.  But F, J and M visa holders are not admitted through a date certain, but rather, through the “duration” of their underlying scholarly, educational or training programs, a duration that may change after their arrival.  For this reason, historically, USCIS policy has been that F, J and M nonimmigrants begin to accrue unlawful presence the day after a DHS officer or immigration law judge makes a finding that the person is out of status – in other words, the day after the person is put on notice that they have violated the terms of their immigration status.  Under the new policy, “unlawful presence” will begin the day after a status violation occurs, even if the foreign national has no idea that s/he has violated status.  Worse, the policy will be applied retroactively; those who violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.

This is the quintessence of “gotcha government.”  It is clear that the policy is designed to snare thousands of foreign students who will not even be aware that they have committed some alleged status violation until well after the 3 or 10-year bar on entry has been triggered.

One can easily imagine the types of minor and technical violations that will render foreign students and scholars inadmissible under this new policy:

  • An F-1 student is advised by his on-campus foreign student advisor that his online student record has been extended but it has not been. GOTCHA!  You’ve been accruing unlawful presence since the date that school administrator made the error.
  • USCIS determines more than 180 days after the student has commenced practical training employment that the work is somehow not sufficiently related to the student’s degree. GOTCHA!  If you leave the United States, you will be barred from returning to the United States for at least three years, and possibly ten years, depending on when you began this allegedly “unauthorized employment”.
  • A student authorized to work 20 hours per week on campus as a graduate research assistant works 22 hours one week to complete a critical project before a lab deadline. GOTCHA!  You’re accruing unlawful presence since hour 21 worked during that week.

As AILA and the Council skillfully argued in their comment on the new memo, not only is this new rule via policy memo fundamentally unfair and a violation of the Administrative Procedure Act, it also re-writes the law Congress passed, which defined the term “unlawful presence” quite differently. Last time I checked, federal agencies don’t get to make law, only interpret and implement them in ways that are consistent with Congressional action.

But as has so often been the case, rather than follow the law, the strategy of the Trump administration is to flagrantly violate it, and then challenge the public to sue for correction, banking that impacted parties will be too afraid, or too lacking in resources, to force compliance with the law through the courts.  This has been the government’s approach with regard to the travel ban, treatment of asylum seekers at the border, so-called “sanctuary cities”, and even its apparent intention to disregard the Supreme Court’s recent decision in Pereira.  Time and time again, this administration has effectively said: “We’re going to do what we want to do, regardless of what the law says, and if you don’t like it, sue us.”

Ladies and gentlemen, that is exactly what we must do.

We cannot allow this administration to get away with these continued and relentless assaults on fundamental fairness, due process, and the rule of law.  We must stand up. If this policy is implemented, thousands of foreign students who have tried to play by the rules will have their futures short-circuited, as the rules that have been in place for 20 years are suddenly reversed and applied against them retroactively.  Universities will suffer decreases in foreign student tuition and exposure to liability for technical status violations they might inadvertently cause to their foreign students.  Ultimately, the best and the brightest minds from around the world will choose to go elsewhere to apply their skills and knowledge, to the detriment of our local communities and national economy.

We cannot let this happen.

AILA’s Administrative Litigation Taskforce is working to hold this administration to account.  We have the arguments; we have the plaintiffs (although we could use more); and we have the lead counsel lined up to challenge this memo in court as soon as funding is secured.  The implementation of this memo must be enjoined as soon as possible if we are to preserve the rule of law and minimize the harm to our foreign students and scholars.

You – AILA member or interested member of the public – can and must help.  If you are an AILA member, start talking about what this policy will mean.  Not just to each other in an echo chamber, but beyond.  Talk to your congressional representatives and let them know that you agree with the letter AILA and nine other organizations sent to the Senate Judiciary Committee this week, urging the withdrawal of this memo and others like it that unfairly target legal immigrants.  Talk to your contacts at schools and universities; talk to reporters, and use this post as a resource.  Bring this important issue into focus for the many who need to know but don’t.  If you are a member of the public, share this blog post, not just the link – encourage people to actually read it.  This issue is one that could get lost in the impenetrable “weeds” of immigration law, but it is vitally important that we bring it up and into the light.  This is yet another terrible, harsh policy and we need to communicate that, via social media, via traditional media, and yes, via litigation.  Let’s get to it.