Last year, USCIS issued a memo changing the situations in which F, J and M Nonimmigrants began to accrue unlawful presence. This new policy took effect Aug. 9, 2018. The policy was then taken to court. A U.S. federal judge issued a nationwide preliminary injunction on May 3 to temporarily block the implementation of the Aug. 9, 2018 USCIS policy memo “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” This article will provide an update on where the case stands, along with additional updates to fee increases for students and prospective changes to the student category.

In spring 2018, U.S. Citizenship and Immigration Services announced a significant change to F-1 student guidelines. Per the new policy, F-1 students who violated their status would begin accruing unlawful presence as of the date of the violation. This means that effective Aug. 9, 2018, any student who had violated their status prior to Aug. 9 would begin accruing unlawful status.

In addition, any status violations in the future would cause the clock to start running for the individual’s unlawful presence. Unfortunately, this would potentially mean that a minor transgression, such as working before or beyond the authorized period of employment, could cause an F-1 student to be in violation of their status and begin accruing unlawful presence.

For more information about the policy, please read our prior article about the change:

“Unlawful Presence Warning: Important update for international religious individuals studying in the United States”

In Guilford College v. Nelson, the judge said that the implementation of this policy would cause “irreparable harm” to colleges, students and teachers. The judge also indicated that it appeared the plaintiffs were likely to succeed on the claims that the memo violated federal regulatory law and that it conflicted with federal immigration law.

While this preliminary injunction does temporarily block this policy, the underlying case is still pending. Until a final decision is reached, students, schools and immigration lawyers must keep watch on case progress to determine any changes to the status of the preliminary injunction and the future of this policy memo.

However, the update does offer a brief reprieve from the significant penalties this policy may impose on F-1 students. If a person accrues more than 180 days of unlawful presence during a single stay, that person may be subject to 3- or 10-year bars to admission, following any departure from the United States. The bar’s time period depends on the amount of unlawful presence accrued before departing the United States. Unfortunately, some students may inadvertently trigger the bar under this policy.

For more information on the status of the case, it is important to follow its status online — which is also closely monitored by NAFSA: Association of International Educators.

 

Additional updates

SEVIS FEE INCREASE

On June 24, 2019, the Department of Homeland Security, or DHS, implemented fee increases for international students and Student Exchange Visitor Program certified schools that enroll F-1 students. All international students and exchange visitors must pay the I-907 SEVIS fee before the Department of State will issue a visa.

Per U.S. Immigrations and Customs Enforcement, or ICE, fee increases include:

• The I-901 SEVIS (Student and Exchange Visitor Information System) fee for F and M international students will increase from $200 to $350.
• The SEVP school certification petition fee for initial certification will increase from $1,700 to $3,000.

 

PROPOSED ELIIMINATION OF D/S FOR F-1 STUDENTS

DHS has proposed to establish a maximum period of authorized stay for F-1 students. Currently, F-1 students are granted “D/S” or “duration of stay” upon entering the United States. Under the proposed change, ICE would modify the period of authorized stay to a maximum period of stay, with options for extension, for each applicable visa category.

This policy is part of the spring 2019 Regulatory Agenda of DHS. The Unified Agenda of Federal Regulatory Actions is a compilation of regulations developed by federal agencies. The items on this list represent an agency’s “wish list,” or changes they hope to see occur. However, the policy is still at the “Proposed Rule Stage” and has not been approved for implementation. The agency’s target date for the change is February 2020.

NAFSA closely follows proposed regulatory changes that may impact international students. 

Click here for more information on the status of this proposal.