Ending Open-Ended Admission Periods for Foreign Students and Others

Trump immigration regulations Biden should finalize, part 3

By Robert Law on February 3, 2021

Read Part 1 - Read Part 2Read Part 4 

In prior posts I wrote about commonsense immigration regulations nearly completed by the Trump administration that the Biden administration would be wise to finalize (see here and here). Another such almost-complete rule is the one to replace "duration of status" (D/S) with fixed-time-period admission for aliens in F (student), J (exchange visitor), and I (foreign media) nonimmigrant status. Unlike the previous rules I've covered, which originated out of USCIS, the D/S rule (formally called "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 primary jurisdiction over student visa issues.

Most nonimmigrant categories are admitted for a fixed period of time. This is often referred to as "date certain" admission because it is clear, both to the alien and to the government, the date the alien's lawful immigration status expires. For example, an H-1B nonimmigrant worker who receives a three-year visa knows exactly when he must stop working (unless he receives an extension of his status or changes to a different nonimmigrant category). Similarly, a tourist who receives a six-month B nonimmigrant visa knows exactly when she must depart.

Conversely, aliens in the F, J, and I nonimmigrant categories are currently admitted into the United States for D/S, meaning for the time the alien is pursuing study (including so-called "practical training" for F-1 foreign students), participating in authorized exchange visitor programs, or employed by a foreign media outlet. This amounts to an indefinite, or at least undefined, period of time that is controlled by the alien's behavior. The lack of check-ins with immigration officials (either U.S. Citizenship and Immigration Services or U.S. Customs and Border Protection) for aliens admitted on D/S poses substantial oversight and compliance problems for the government. As ICE stated in the notice of proposed rulemaking, which was published in the Federal Register on September 25, 2020:

Admission for D/S, in general, does not afford immigration officers enough predetermined opportunities to directly verify that aliens granted such nonimmigrant statuses are engaging only in those activities their respective classifications authorize while they are in the United States. In turn, this has undermined DHS's ability to effectively enforce compliance with the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse.

The unlawful presence bars were devised by Congress to encourage compliance with immigration law by imposing strict penalties for remaining in the country unlawfully. An alien who accrues between six-to-12 months of unlawful presence before departing the country is subject to a three-year bar of entry. Aliens who accrue more than 12 months of unlawful presence trigger a 10-year bar of entry upon departure. Alarmingly, because of the nature of D/S, aliens in F, J, and I classifications generally do not begin accruing unlawful presence until after they are caught violating their status.

The consequences of this treatment expose the country to significant national security and fraud concerns. For example, a Chinese student admitted on an F-1 who stopped going to classes three years ago and has been engaged in nefarious conduct technically has not accrued a single day of unlawful presence. Then two years down the road, after an immigration judge finally makes a formal finding of status violation, the unlawful presence clock starts. If the alien departs the country in less than six months from that date, the unlawful presence is wiped away and neither the three-year nor 10-year bars apply, despite this hypothetical alien violating U.S. immigration law for more than five years. As ICE states in the proposed rule, DHS "is concerned about the integrity of the programs and a potential for increased risk to national security." With more than two million aliens admitted in fiscal year 2018 in F, J, and I nonimmigrant status the integrity concerns are very real.

To address these legitimate concerns, DHS proposed to eliminate D/S and move F, J, and I nonimmigrants to a fixed admission period — again consistent with nearly every other nonimmigrant category. Specifically, DHS proposed to admit F and J nonimmigrants for a period up to the program end date, not to exceed four years unless DHS determined, under certain high risk/fraud scenarios, that the alien should be admitted for no more than two years. DHS also proposed to admit I nonimmigrants for the period necessary to complete their assignments, not to exceed 240 days. If an alien needed more time to complete the F, J, or I activity and was otherwise eligible, he or she could get additional time by simply applying for an extension of stay with USCIS or departing the country and seeking re-admission with a CBP officer.

Predictably, there was outrage by the usual antagonists of the Trump administration. even though the proposed rule did not alter the underlying eligibility requirements for an alien to qualify as an F, J, or I nonimmigrant. Yet, if one steps back and reviews this rule without the anti-Trump lens, they will discover a sound regulation that adheres to the rule of law, enhances immigration integrity, and mitigates against harm to the homeland. ICE and USCIS staff have already done the hard work of drafting the final rule after considering substantial public feedback. The rule was under the review of the DHS Office of General Counsel before Biden took office. His deputies should re-initiate that review promptly and see it across the regulatory finish line.