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US HEIs challenge unlawful presence restrictions on F, J and M visas

Following the announcement by the Trump administration of new restrictions on international students ‘unlawful presence’, which will give students less leeway when avoiding penalties at the end of their stay, four institutions have launched legal proceedings to block the move.

The New School, based in Manhattan, is one of the institutions alleging the rule will harm US recruitment. Photo: Flickr/Kevin Dooley

Part of the problem emanates from the 'backdating' of unlawful accrual

Added to the docket of a district court in North Carolina is a lawsuit filed by a group including three colleges and a community college network from across the nation, which argues the new rules would dissuade international students from coming to the US.

“Individuals will have less than 180 days, or often no time at all, to leave the country”

Guilford College, The New School, Foothill-De Anza Community College District, and Haverford College also allege the rule will take vital cash and investment from institutions and local communities, by “impos[ing] a financial harm on institutions in terms of lost tuition dollars and local communities”.

Cited in the case is the story of at least one New School student who was forced to take a semester sabbatical from their studies, after the new rule forced her to leave the US to renew her immigration status. This process would have happened with the student remaining in the US under the old rules, but fear of accruing ‘unlawful presence time’ under new stipulations meant they left instead.

“That fundamentally disrupted the student-university relationship, and The New School lost tuition as a result. But for the August 2018 Policy Memorandum, the student would not have stopped her education with The New School,’ the case sets out.

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.

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 lawsuit accuses USCIS and the U.S. Department of Homeland Security of violating the Administrative Procedure Act and infringing students’ due process rights, saying the government had relied on inaccurate information and had not gone through the proper rule-making process when promulgating the rule,” explained immigration lawyer and international education expert David Ware.

The case also argued that students who do not mean to contravene laws, but make honest mistakes, might be caught up unfairly by the new specifications.

“But for the memorandum, the student would not have stopped with The New School”

“They also said the policy could result in the removal of students who were ‘well-intentioned’ but fell out of status accidentally, such as by working slightly more than the legal maximum of 20 hours per week to meet a deadline, by reducing their course load without the correct approval, or even by making a typographical error,” Ware continued.

Part of the problem emanates from the ‘backdating’ of unlawful accrual, according to the suit.

“The August 2018 Policy Memorandum, however, will backdate unlawful presence. That means that individuals will have less than 180 days, or often no time at all, to leave the country prior to being subject to a reentry bar,” it explained.

This means that students who thought they could re-apply within the previous rule’s accepted time period, suddenly found themselves in contravention. Some, such as the New School student cited by the appellants, have allegedly been forced to leave the US since the change.

USCIS said it does not comment on ongoing cases.

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