Ending Open-Ended Admission Periods for Foreign Students and Others

In prior posts I wrote about commonsense immigration laws almost accomplished by the Trump administration that the Biden administration can be smart to finalize (see here and here). Another such almost-complete rule is the one to switch “duration of status” (D/S) with fixed-time-period admission for aliens in F (scholar), J (trade person visiting), and that I (out of the country media) nonimmigrant standing. Unlike the earlier guidelines I’ve lined, which originated out of USCIS, the D/S rule (formally known as “Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media”) falls under the purview of U.S. Immigration and Customs Enforcement (ICE), which has major jurisdiction over scholar visa points.

Most nonimmigrant classes are admitted for a hard and fast time frame. This is also known as “date certain” admission as a result of it’s clear, each to the alien and to the federal government, the date the alien’s lawful immigration standing expires. For instance, an H-1B nonimmigrant employee who receives a three-year visa is aware of precisely when he should cease working (until he receives an extension of his standing or modifications to a special nonimmigrant class). Similarly, a vacationer who receives a six-month B nonimmigrant visa is aware of precisely when she should depart.

Conversely, aliens within the F, J, and that I nonimmigrant classes are at the moment admitted into the United States for D/S, which means for the time the alien is pursuing research (together with so-called “practical training” for F-1 out of the country college students), taking part in licensed trade person visiting packages, or employed by a out of the country media outlet. This quantities to an indefinite, or no less than undefined, time frame that’s managed by the alien’s conduct. The lack of check-ins with immigration officers (both U.S. Citizenship and Immigration Services or U.S. Customs and Border Protection) for aliens admitted on D/S poses substantial oversight and compliance issues for the federal government. As ICE acknowledged within the notice of proposed rulemaking, which was revealed within the Federal Register on September 25, 2020:

Admission for D/S, basically, doesn’t afford immigration officers sufficient predetermined possibilities to immediately confirm that aliens granted such nonimmigrant statuses are partaking solely in these actions their respective classifications authorize whereas they’re within the United States. In flip, this has undermined DHS’s potential to successfully implement compliance with the statutory inadmissibility grounds associated with illegal presence and has created incentives for fraud and abuse.

The illegal presence bars had been devised by Congress to encourage compliance with immigration regulation by imposing strict penalties for remaining within the nation unlawfully. An alien who accrues between six-to-12 months of illegal presence earlier than departing the nation is topic to a three-year bar of entry. Aliens who accrue greater than 12 months of illegal presence set off a 10-year bar of entry upon departure. Alarmingly, due to the character of D/S, aliens in F, J, and that I classifications usually don’t start accruing illegal presence till after they’re caught violating their standing.

The penalties of this remedy expose the nation to vital nationwide safety and fraud considerations. For instance, a Chinese scholar admitted on an F-1 who stopped going to lessons three years in the past and has been engaged in nefarious conduct technically has not accrued a single day of illegal presence. Then two years down the street, after an immigration decide lastly makes a proper discovering of standing violation, the illegal presence clock begins. If the alien departs the nation in lower than six months from that date, the illegal presence is wiped away and neither the three-year nor 10-year bars apply, regardless of this hypothetical alien violating U.S. immigration regulation for greater than 5 years. As ICE states within the proposed rule, DHS “is concerned about the integrity of the programs and a potential for increased risk to national security.” With greater than two million aliens admitted in fiscal yr 2018 in F, J, and that I nonimmigrant standing the integrity considerations are very actual.

To deal with these respectable considerations, DHS proposed to eradicate D/S and transfer F, J, and that I nonimmigrants to a hard and fast admission interval — once more according to almost each different nonimmigrant class. Specifically, DHS proposed to confess F and J nonimmigrants for a interval as much as this system finish date, to not exceed 4 years until DHS decided, under sure excessive threat/fraud situations, that the alien ought to be admitted for not more than two years. DHS additionally proposed to confess I nonimmigrants for the interval vital to finish their assignments, to not exceed 240 days. If an alien wanted extra time to finish the F, J, or I activity and was in any other case eligible, she or he might get further time by merely applying for an extension of stick with USCIS or departing the nation and in search of re-admission with a CBP officer.

Predictably, there was outrage by the same old antagonists of the Trump administration. though the proposed rule didn’t alter the underlying eligibility necessities for an alien to qualify as an F, J, or I nonimmigrant. Yet, if one steps again and opinions this rule with out the anti-Trump lens, they are going to uncover a sound regulation that adheres to the rule of regulation, enhances immigration integrity, and mitigates in opposition to hurt to the homeland. ICE and USCIS workers have already achieved the onerous work of drafting the ultimate rule after contemplating substantial public suggestions. The rule was under the evaluate of the DHS Office of General Counsel earlier than Biden took workplace. His deputies ought to re-initiate that evaluate promptly and see it throughout the regulatory end line.