Accruing unlawful presence is a cause for concern as individuals who accumulate more than 180 days of unlawful presence during a single stay in the US are subject to three or 10-year bans on re-entering the country.

“Some may suspect its purpose is to discourage international students from coming to the US”

The prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation, and the applicant had been notified.

Under the new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs unless the student applies for reinstatement or they are covered by some other exception.

The most significant change to the revised policy is the stipulation that international students on F and M visas will not accrue unlawful presence for time out of status while a “timely-filed” (within five months) application for reinstatement is pending.

According to the Department of Homeland Security’s FY 2017 Entry/Exit Overstay report, student, exchange visitor and vocational student categories have significantly higher overstay rates than other nonimmigrant visa categories.

USCIS director Lee Francis Cissna explained that the unlawful presence policy had been adjusted to address concerns raised in public comments regarding how USCIS implement the “unlawful presence ground of inadmissibility” and reduce the number of overstays.

“People who overstay or violate the terms of their visas should not remain in the US. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable,” he said in a statement.

However, an analysis of the revised policy by the executive director of the National Foundation for American Policy, Stuart Anderson, said it relies on a report on overstays whose conclusions are “questionable”.

“That the new policy is unfair seems clear and… some may suspect its purpose is to discourage international students from coming to the United States,” he added.

Anderson’s comments were echoed by NAFSA, who raised additional concerns over the lack of clarity around how the update USCIS guidance will impact the policies of other agencies including ICE and SEVP.

“Given the serious consequences of the overstay and unlawful presence provisions, advisers would best serve students and scholars by explaining the consequences of visa overstay and unlawful presence, and by providing easy-to-understand and frequent communications,” the statement added.