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US: Student visa crackdown questioned by stakeholders and courts

The Trump administration in the US has been accused of arriving at “questionable conclusions” from Department of Homeland Security visa overstay reports, in order to legitimise immigration limits on international students.

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DHS cannot enforce the memo, pending the further court hearing

Already accused of being a turn-off to international students for reasons including his controversial travel ban policy, applying to a number of Middle Eastern and Asian countries; Trump has set out his intention to curb the period of authorised stay for international students, in part by ‘back-dating’ the period of overstay to the date the visa ran out, rather than when immigration officials begin an investigation.

“DHS include people whose departure from the US could not be verified”

This is key, as penalties are handed out on the basis of time overstayed, and with DHS delays often exceeding 180 days many students could be unfairly punished by this change.

President Trump has since applied more pressure when, last month, he charged Secretary of State Mike Pompeo and the Departments of Justice and Homeland Security to recommend policies to dramatically reduce the number of overstays in the US, with the administration apparently weighing up travel restrictions to offending countries.

Countries with the highest overstay rates at the moment include: Nigeria, Somalia, Chad, Sudan, Togo, Liberia, Eritrea and Sierra Leone.

A broadside against this turn in US government policy direction has come from Stuart Anderson, a former Capitol Hill staffer and currently the executive director of trade and immigration think tank, the National Foundation for American Policy.

In an article for Forbes, Anderson set out a number of ways in which the Department of Homeland Security’s visa overstay reports are seemingly being manipulated to exaggerate the situation and leverage a disproportionate argument.

The various flaws of the DHS visa overstay reports include the fact they actually include people whose departure from the US could not be verified.

This could be for a number of reasons, including, according to Paul Virtue, a former Immigration and Naturalization Service official, individuals changing to a work visa and that not being recorded by SEVIS (Student and Exchange Visitor Information System). Quoting the DHS themselves, Anderson’s article noted that departures from US airports are not monitored by anything other than the manifests of each airline.

Anderson further notes that there’s no distinction made between short-term and/or accidental lapses versus long-term overstays, with the latter category itself made variable by “adjustment to lawful permanent resident status, emigration on their own, and death.” In this respect he quoted demographer Robert Warren and his recent study of DHS reports.

“Overstay rate for F-1 students declined 42% between 2016 and 2018”

Warren’s work highlights that the half of the 6.19% “total overstay rate” for F-1 students in 2016 comes from “possible overstays”, and for the other half the DHS stated that “there is evidence indicating they are no longer physically present in the United States.”

Anderson further contended that the Trump administration is selective in what it uses from DHS reports to bolster its policy. It failed to acknowledge, for example, that the overstay rate for F-1 students “declined 42% between FY 2016 and FY 2018, falling from 6.19% in FY 2016 to 3.59% in FY 2018.”

Finally, underscoring the debate is the much-cited report from the Center for Migration Studies (where Robert Warren is a senior visiting fellow) that compared the number of undocumented immigrants overstaying their visas with those who crossed the border illegally between 2016-17, and revealed a 68%-32% split.

However, Warren asserts that overstay rates have not actually increased, and Anderson argued that the discrepancy is down to the decline of illegal border entries.

The topic of overstays has been contentious since an August 2018 policy memo to DHS was challenged in the courts, beginning October 2018.

A group of colleges and universities alleged the ruling was unlawful, as it “is intentionally designed to impose tens of thousands of reentry bars on F, J, and M visa holders each year”. Thanks to a court ruling on May 3, the DHS cannot enforce the memo, pending the further court hearing.

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