By Xiaojie (Marta) Meng, Deok (Doug) Song
On May 10, 2018, U.S. Citizenship and Immigration Services (“USCIS”) proposed a policy memo regarding the accrual of unlawful presence for F (student), J (exchange visitor), and M (vocational student) nonimmigrants. USCIS seeks public comment regarding the proposed changes until June 11, 2018.
The proposed changes unfairly applies the law and triggers unlawful presence accrual for unsuspecting F, J, and M nonimmigrants who may not reasonably know about technical violations of status until years after the fact. Also, the proposed rule is inconsistent with existing statutes, regulations, and interpretations. The new policy change will create unintended legal and practical problems for all interested parties, including the U.S. government, nonimmigrants in these status, and the general public associated with these individuals. Thus, we respectfully and strongly urge USCIS to reconsider the implementation of the proposed policy and withdraw the proposed memo to take more time to thoroughly review it.
- Implementation Of The New Policy Will Create Uncertainty Over Accrual Of Unlawful Presence By Retroactively Triggering Unlawful Presence Period To Unsuspecting F, J, And M Nonimmigrants Who May Not Reasonably Be Aware Or Have Knowledge Of Their Status Violation Due To Technicalities And Will Not Have Reasonable Opportunity To Affirmatively Mitigate The Unlawful Presence Accrual Period.
According to the proposed policy, an F, J, or M nonimmigrant will begin accruing unlawful presence on the day after the nonimmigrant fails to maintain his or her status. This is a significant departure from the current policy and could lead to extremely harsh consequence of 3- and 10-year bars to entry to students and exchange visitors who may only reasonably find out about the unlawful presence accrual until it is too late to make any change.
Under the existing policy, an F, J, or M nonimmigrant starts accruing unlawful presence on the earliest of the following:
- The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
- The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) ordered the alien excluded, deported, or removed (whether or not the decision is appealed).
Thus, an F, J, or M nonimmigrant will clearly be aware of the starting date of the accrual of unlawful presence and can make affirmative plans to comply with the law to avoid the potentially devastating consequences of unlawful presence.
Under the proposed policy, effective August 9, 2018, an F, J, or M nonimmigrant starts accruing unlawful presence on the earliest of the following:
- The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
- The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
- The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
- The day after an immigration judge or, in certain cases the BIA28 orders the alien excluded, deported, or removed (whether or not the decision is appealed).
The changes proposed under the new policy can dramatically affect F, J, or M nonimmigrants by retroactively triggering unlawful presence to an unsuspecting student or exchange visitor who unknowingly engaged in a technical violation of their status. For example, regulations regarding employment for F students are complex, and many includes technical requirements that many students do not understand or are not even aware of. For instance, if the new rule goes into effect, an 18-year college freshman who, in good faith, volunteered for an off-campus internship without CPT could reasonably not find out about this potential violation of status until 3 or 4 years later after graduation during the H1B petition adjudication. Thus, due to the new policy change, this 21 or 22 year old person would unknowingly accrue 3 to 4 years of unlawful presence and will be barred from returning to the U.S. for 10 years.
The new proposed policy unnecessarily creates uncertainty over the trigger date of unlawful presence and in the process severely punishes unknowing, unsuspecting students (many of whom are young people just starting their life) from returning to the U.S. for 3 or even 10 years.
Moreover, as will be discussed below, the proposed policy change does not only revise AFM Chapter 40.9.2. The proposed revision will have ripple effects that create inconsistencies and contradictions with existing policy and interpretations of the law within DHS and with Department of State.
- The USCIS Policy Memo Confuses the Distinction Between Violating Status and Unlawful Presence, Which Has Been Consistently Recognized in INA 212(a) and 237(a) As Pivotal to the Application of Other Sections of the INA
The proposed policy memo at hand fails to distinguish between violating status and unlawful presence when determining the applicability of the guidance and policies contained in the memo. Existing statutes clearly and separately distinguish between these two distinct legal concepts. To disregard the need to delineate the applicability of published guidance to each of these concepts is arbitrary and capricious and contradicts existing government policy and interpretations.INA 212(a)(9)(B)(ii) defines the construction of unlawful presence circumstances: “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled” (emphasis added). The statute explicitly reserves unlawful presence for circumstances in which status has expired and no other period of stay has been authorized by the Attorney General. INA 237(a)(1)(B) further defines unlawfully present aliens as a class of deportable aliens and as “[a]ny alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i)” (emphasis added). The statutes explicitly define unlawful presence as an expiration, as opposed to a mere violation, of status; an unlawful entry into the United States; or an affirmative revocation of documentation authorizing admission into the United States. A revocation would entail, for example, a determination by an immigration judge or the Department of Homeland Security, and unlawful presence would trigger at the moment of such action.
Notably, INA 237(a)(1)(C)(i) specifically distinguishes nonimmigrant status violators from unlawfully present aliens, and separately defines nonimmigrant status violators as “[a]ny alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248, or to comply with the conditions of any such status.”
Thus, INA clearly distinguishes between status violations and unlawful presence as separate legal concepts with different legal consequences. Congress has chosen to distinguish these legal concepts and impose different severities of repercussions, likely because unlawful presence involved affirmative intent to stay beyond authorized period of stay whereas status violation could involve negligence in understanding requirements of maintaining a status, which often includes various technical violations. Nonimmigrants should be reasonably aware of when their authorized stay expires, and staying in the United States beyond such expiration assumes a level of intent, whereas a violation of status may be the mere product of negligence. The new policy would blur the distinction of these two statutory concepts, which would effectively create inconsistencies among different sections of the INA statues without a good policy rationale.
The USCIS policy memo, at a minimum, guarantees the avoidable outcome of an inconsistent statutory framework for immigration law and will inevitably lead to unnecessary litigation over the applicability of certain sections of immigration law and existing policy manuals.
- The Proposed Policy Amends AFM 40.9.2(b)(1)(E)(i)-(iii), Which Will Cause Inconsistency with Other Sections of the Existing Adjudicators Field Manual
The policy memo at hand primarily addresses AFM 40.9.2(b)(1)(E)(i)-(iii), which outlines guidance on how to determine when an alien present in lawful status as a lawful nonimmigrant accrues unlawful presence. The current Adjudicators Field Manual (“AFM”) states “status violation” and “unlawful presence” as two different concepts and does not confuse the two.
AFM 40.9.2(a) in its entirety is devoted to distinguishing between unlawful status and unlawful presence. In fact, the AFM states: “To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (“period of stay not authorized”). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same.”
Amending AFM 40.9.2(b)(1)(E)(i)-(iii) would directly contradict the overall principle of distinction between unlawful presence and status violation under AFM 40.9.2(a). However, the memo does not touch on the relevance or application of AFM 40.9.2(a) moving forward and, as such, ensures that adjudicators will apply immigration laws in an unpredictable and inconsistent manner. This confusion would not live in just this particular set of subsections of the AFM and INA, but would also extend to many other parts of the present immigration law framework.
- The Proposed Policy Revision Will Contradict the Department of State’s Guidance and Interpretations.
The policy memo’s guidance, if implemented, would also create irreconcilable inconsistencies between the Department of Homeland Security and the Department of State on the treatment of F, J, or M nonimmigrants who violate their status.The Department of State Cable on Revised 222(g) Guidance (March 1998) interprets INA 222(g) and related unlawful presence accumulation for nonimmigrants. The Department of State’s position has not been revised since this cable and effectively agrees and is entirely consistent with the Department of Homeland Security’s current policy for determining unlawful presence for nonimmigrants. The USCIS policy memo makes no mention of this direct conflict of interpretations and has no jurisdictional impact over the Department of State. Thus, the new policy will create a situation where DHS and DOS will have to enforce different interpretations on same fact patterns involving F, J, or M nonimmigrants. To enact a rule without considering other agencies’ abilities to adjudicate matters based on the same statutes is to overreach beyond the limit of a single agency’s rulemaking authority. An agency, of course, does have rulemaking authority, but should not knowingly affect other agencies’ abilities to apply underlying statutes in a consistent manner without due consideration.
- The Proposed Memo Will Not Achieve the Goal It Sets Out to Achieve And Will Likely Burden the Already Overburdened Immigration System.
The proposed policy memo claims “to reduce the number of overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under INA 212(a)(9)(B) and INA 212(a)(9)(C)(i)(I)….” However, as the above analysis reveals, the proposed policy revision, if implemented, will create chaos, confusion, and uncertainty within USCIS and among agencies when implementing the unlawful presence ground of inadmissibility under INA 212(a)(9)(B) and INA 212(a)(9)(C)(i)(I) than to improve it. Rather than improving the system, it will likely burden the already burdened immigration system by turning unsuspecting students and exchange visitors from re-entering the U.S. for 3 or even 10 years without their knowledge and without providing them the opportunity to affirmatively mitigate such harsh consequence.
The current immigration law framework already penalizes violations of status. To impose additional penalties that are typically reserved only for those who accrue unlawful presence would be both excessive and unnecessary. Violating status already bears the potential penalties of not being able to change, extend, or adjust status. According to INA 237(a)(1)(B), violating status can also lead to deportation since “any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i), is deportable.”
These consequences give F, J, and M nonimmigrants sufficient incentives to avoid status violations and to lawfully pursue their educational or vocational pursuits. The current immigration law framework understands and recognizes the nuances between violating status and unlawful presence and ensures that each bears their own commensurate consequences.
The USCIS Policy Memo as written will add no value to the current immigration system and will create more confusion and inconsistencies among agencies relying on statutes and guidance contained in the memo. Changes in immigration law policy should be taken with careful consideration and with in-depth understanding of its legal and practical ramifications as well as the interplay of the legal interpretation. As such, the proposed policy memo should be withdrawn and amended to better distinguish between violating status and unlawful presence to avoid the foreseeable inconsistent misapplication of immigration laws to F, J, and M nonimmigrants and retroactively triggering 3- and 10-year bar to entry to students or exchange visitors who may not know about their status violation and likely will not have the opportunity to affirmatively minimize the unlawful presence accrual period.
- Conclusion and Suggested Solution
The Department of Homeland Security has a legitimate concern for students staying in the United States beyond the ending dates of their educational, exchange, and vocational programs. The solution to such concerns should not be the narrow, short-sighted, and misguided reinterpretation of immigration laws proposed in the current policy memo. The issue should be addressed either through a more comprehensive consideration of all the agencies and statutory frameworks affected by the distinction between violating status and unlawful presence or, more realistically, through effective implementation of the SEVIS system and the institutions with responsibilities over these students or exchange visitors.