Recent policies issued by the United States Citizenship and Immigration Services (USCIS) have significantly impacted the ability of foreign students and exchange visitors to remain lawfully in the United States. Most foreign nationals who are inspected and admitted to stay in the United States under nonimmigrant status are allowed to do so until a specific date. Previously, academic exchange students and exchange visitors were an exception to this rule and were permitted to remain in the United States under a “duration of status” due to the difficulty in determining a precise end date for their course of study or project.
On August 9, 2018, the USCIS issued a new policy that radically changes how the agency determines whether a foreign student or exchange visitor is “unlawfully present” in the United States. “Unlawful presence” is defined as any time spent in the United States after a foreign national’s period of authorized stay has ended. Under the new policy, the starting date for calculating unlawful presence for foreign students or exchange visitors will be the day after an event that the agency considers a status violation. Many students will not realize that they are accumulating unlawful presence. This lack of recognition will have significant effects because generally a nonimmigrant who leaves the United States after being unlawfully present for more than 180 days but less than 1 year is barred from returning for 3 years; after 1 year or more of unlawful status, the bar is 10 years. This policy change also impacts the spouses and children over the age of 18 whose status is based on the student or exchange student’s status.
Opponents to this policy argue that the focus of the USCIS on policing this population is unwarranted. For instance, even with the manipulation of data by the USCIS, the overstay rate for student and exchange visitors for 2017 is less than 1.43%. In addition, opponents of this policy assert that this measure will serve to drive student and exchange visitors to other countries and away from pursuing higher educational and valuable career opportunities in the United States. Finally, the United States may miss out on important contributions from foreign nationals who become banned from the country because they were unaware that they were living in the country unlawfully.
USCIS Revises its Policy On Stem OPT Eligibility at Off Site Client Locations
Earlier this year, the United States Citizenship and Immigration Services (USCIS) changed its interpretation of the 2016 STEM optional training rule for F-1 students. Under that policy, the USCIS stated that the training experience for F-1 students must occur at the employer’s principal place of business or a location to which the United States Immigration and Customs Enforcement (ICE) has authority to make visits. On August 17, 2018, the USCIS changed course, providing that the employee may work at a third party site as long as: (1) the employer maintains a bona fide employer-employee relationship with the student; (2) the employer has sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity at the location; (3) the STEM OPT student will not replace a full or part time, temporary or permanent U.S. resident and (4) the training opportunity will assist the student in attaining his or her goals.
Although the new policy allows STEM OPT employees to work at client or customer sites, DHS retains the right to conduct site visits of any STEM OPT employer to ensure that the employer is providing the necessary training to the employee. DHS must provide a minimum of 48 hours of notice about the visit to the employer. These visits ensure that STEM OPT students receive guided work-based learning experience that are consistent with the information provided on the student’s Form I-983 and that employers are not delegating or assigning their training responsibilities to a non-employer third party.
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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration