Comment on the Rule Change Proposed by the Department of Homeland Security:
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
DHS Docket No. ICEB-2019-0006
Jessica M. Vaughan, Director of Policy Studies, Center for Immigration Studies
Qualifications of Commenter. I am the Director of Policy Studies for the Center for Immigration Studies (CIS), a Washington, D.C.-based research institute that examines the impact of immigration on American society and educates policymakers and opinion leaders on immigration issues. I have worked with CIS since 1992, and my area of expertise is immigration policy and operations, particularly non-immigrant visa programs. I have extensively studied and published reports on the topic of visa programs, regulations, and policy.
I have spent nearly 30 years researching, analyzing, and monitoring the policies and actions of the government agencies in charge of implementing the nation's immigration laws, including the Department of Homeland Security and component agencies and the State Department. My responsibilities include examining and analyzing federal statues, government regulations, and academic data and reports on non-immigrant visa programs. I have interviewed U.S. and foreign immigration officials, including consular officers, immigration benefits examiners, and fraud investigators. The expertise I have developed has allowed me to understand and recognize the actual effects and significance of the discretionary policy actions taken and regulations promulgated by federal immigration agencies. I have testified before the U.S. Congress more than two dozen times, and am frequently consulted by federal agencies, other researchers, and news media seeking expertise on these matters. Prior to joining CIS, I served as a foreign service officer with the State Department, including serving as Chief of the Non-Immigrant Visa Section in a U.S. embassy. My work has been published in numerous international, national, and regional outlets, and can be found at www.cis.org. I have given presentations at many academic, government and law enforcement conferences and trainings as a subject matter expert on immigration. I earned a Master's degree in Government from Georgetown University and a Bachelor's degree in International Studies from Washington College in Maryland.
General Comments on the Need for the Regulatory Changes. The changes proposed in this rule are critically important to the government's ability to ensure compliance with student and exchange visitor visa programs and to reduce fraud and abuse of these visas. This abuse includes mis-use of the student/exchange visa status to prolong residency in the United States and also overstaying the visa to live illegally in the United States.
DHS has estimated that more than 70,000 aliens overstayed student/exchange visas in 2018. Citizens of at least five countries had more than 3,000 overstays that year, including China, which had nearly 13,000. In addition, 10 countries had student/exchange visa overstay rates greater than 30 percent. A majority of the visitors from Eritrea overstayed their visas, and visitors from four countries (Eritrea as well as Congo (Kinshasa), Yemen, and Chad) had rates over 40 percent. (See Jessica M. Vaughan and Matthew Sussis, "DHS Reports Slight Dip in Overstays in 2018", Center for Immigration Studies, April 24, 2019.)
Some have argued that the number of student/exchange visa overstayers is small relative to other visa categories. Why should we be so concerned about student and exchange visitors in particular, when the overstay numbers are small relative to some other visa categories, like regular temporary visitor visas? Student/exchange visa overstays represent only about 5 percent of the entire overstay population.
First, because student/exchange visitors are admitted for a long period of time and with relatively little supervision.
Second, because these visa programs allow people who would not otherwise qualify for a visa to gain admission to the United States. These are people who are relatively young, perhaps not in stable employment, and thus represent a high risk for overstaying. But under our system, if they can get a college, community college, vocational school, or exchange program to accept them as participants or enroll them as students, they probably can get a student visa.
For these and other reasons, the student visa program has a proven association with terrorists, such as the 9/11 terrorists, and with espionage.
Similarly, the student/exchange programs attract fraud, as amply documented in the proposed rule notice. Such fraud includes the large number of non-rigorous programs that exist for the sole purpose of facilitating the admission of unqualified foreigners who can then overstay. My organization estimates that there may be as many as 40,000 individuals who have entered through a fraudulent or bogus student visa program, often also obtaining approval for the OPT Program. (See David North, "The Dregs of Higher Education Damage Our Immigration System", Center for Immigration Studies, September 11, 2017.)
In addition, student and exchange visa overstays add to the already-large population of settled illegal aliens, now estimated to exceed 11 million people. Illegal immigration imposes enormous fiscal, economic, social, and environmental costs on American society, and damages the integrity of our legal immigration system. Regulations like this one, which will reduce the growth in that population, contribute to the government's ability to mitigate those effects.
Although our government has developed a way to track which students do not maintain status in their course of study and there are ways to determine which entities may not have rigorous academic programs, ICE still devotes very little of its resources to enforcing the law against programs like these and their participants. ICE states explicitly that its overstay enforcement is limited to those students considered to be national-security or public-safety threats, and the rest are largely ignored.
Therefore, rather than relying primarily on interior immigration enforcement efforts to clean up the problem of visa overstayers, the government must take more steps to prevent non-legitimate participants from having the opportunity to game the system before violations occur.
Finally, high rates of non-compliance in student and exchange visa programs damage public perceptions or these programs and cause an erosion of public support. Those institutions in our society, mainly the higher education and exchange program industries, that benefit from the admission of foreign students and exchange visitors should welcome all efforts to preserve the integrity of the program in general so that public support can be sustained.
- Requiring a Fixed Period of Authorized Duration of Stay (Maximum Four or Two years) Instead of an Indefinite Grant of Admission for "Duration of Status". This rule change is important and appropriate for several reasons.
- No non-immigrant visas ever should be granted for an undetermined period of stay. These visas are by definition meant to be temporary, and the government should establish an end date by which the alien must apply for an extension or return home. Without a specified end date, aliens will (and do) assume that the government does not care when they leave and will not monitor when they leave, exacerbating the temptation to overstay. In my experience as a consular officer, I often interviewed applicants for visa renewal who previously had stayed right up to the very end of their authorized duration of stay who would tell me point-blank that they planned to stay in the United States for as much time as the U.S. government allowed them to remain, regardless of the duration of any program and regardless of their stated plans. In their minds, they were compliant, but our government should not have policies that encourage or entice non-immigrants to stay as long as possible; instead, we should send the message that they are admitted for a specific purpose and time period, and that this will be enforced. Messaging is very important to create a culture of compliance with immigration laws, and currently that message is lacking. In my experience, the very act of monitoring program participants will deter many people from violating the rules, even if the government is not able to take action against every violator.
- The authorized duration of stay should be determined by immigration officers administering the law, not by unaccountable designated school officials (DSOs). Most DSOs are conscientious and want to help foreign students comply with the law, and want to cooperate with immigration officials to maintain the ability to enroll foreign students. But some DSOs are motivated more by a desire to "help" foreign students stay in the United States, or to maximize foreign student enrollment for the purposes of tuition revenue. These motivations may conflict with the national interest and the student/exchange visa program rules. Therefore, the government should not outsource its compliance and oversight responsibilities to DSOs, who are independent of the government — particularly the critical determination of whether a student is making sufficient progress in the academic program to comply with the law.
- Without a fixed end to the duration of status, the government cannot enforce section 212 (a)(9)(b) of the INA, known colloquially as the "3/10 year bar". This provision imposes a penalty on those who accrue illegal presence who also wish to adjust status. While this provision is not an effective deterrent to overstaying in and of itself, it has been an effective penalty in some scenarios. Its effectiveness is greatly limited in the case of student/exchange visitors, however, because those granted admission for "duration of status" are considered not to accrue illegal presence until certain encounters and determinations by immigration officials, even if the period of overstay is much longer. (See Jessica M. Vaughan, "Bar None: An Evaluation of the 3/10-Year Bar", Center for Immigration Studies, July 1, 2003.)
- The proposed rule includes a provision to enable immigration officials to require those applying for an extension of stay to appear for an interview. This should be amended to require extension of stay applicants to appear for an interview in order to obtain the extension of stay. The interviews is a critical part of visa and benefits screening that enables adjudicators to evaluate the eligibility and credibility of applicants and obtain information that is not on the forms they fill out or in databases that they check. USCIS now interviews all applicants seeking to adjust status to an employment green card (about 165,000 cases a year) and applicants who claim to be family members of asylees and refugees (both historically high-fraud categories). USCIS has found that while the interview requirement has added slightly to the time it takes to process the cases, the officers are now able to detect considerably more fraud and other problems, especially with the employment-based cases. The interview should be a requirement for all extension of stay and Optional Practical Training applications.
- One proposed change is to limit the duration of stay for language students to 24 months. The proposal to impose a limit is a very sound one, as evidenced by the examples of abuse detailed in the notice. However, 24 months is also a longer period than needed by most language students. Instead, the initial duration of stay for students/exchange visitors enrolling in language programs should be 12 months, with the opportunity to file an application for extension of stay of six additional months. The typical language study abroad program run by foreign universities and cultural institutes has a duration of several months to one year. It is common for language students to achieve a strong conversational and reading proficiency in most languages with six months of intensive study. In fact, this is the duration of most of the State Department's intensive language learning programs, which require the students to achieve a level of ability to conduct certain professional activities. Programs for learning languages with a different alphabet, such as Russian or Japanese can require a year or more, but most employees headed to an assignment overseas complete the program successfully in six months. Most American college students in language studies go abroad only for one semester or a year. To reduce the likelihood of the language study visas being used as a means to extend a stay inappropriately or evade immigration restrictions, the initial authorized duration of stay should be 12 months.
- The notice states that students who are citizens of countries with high overstay rates or certain countries that are state sponsors of terror will be limited to an initial maximum duration of stay of two years (instead of the standard four years). In addition, those schools that are determined to have a disproportionately high number of visa overstayers, regardless of the country of citizenship of the overstayers, also should be subject to the two-year maximum initial duration of stay.
- In addition to the internal monitoring of these programs that occurs within the agencies, it would be helpful for additional transparency to enable the public to have more information on the student and exchange visitor programs. The Department of Homeland Security should be required to augment the existing disclosure of data to include a report on the number of students who adjust to another immigration status and the categories of status to which they adjust or change. In addition, DHS should commission or prepare a longitudinal study of foreign students to examine the typical pathways to other status, including permanent residency and citizenship, in order to better guide policy formulation in this area.
- Changes in Educational Levels. Again, the imposition of limits on the number of programs in which an alien can enroll is a good change. Clearly, under current rules, aliens seeking to use the student visa as an opportunity to settle here illegally have found ways to become perpetual students in programs that serve only as a pretext to obtain a visa, as illustrated by the examples in the notice. However, the new proposed limits that would allow a student to pursue a total of three degree programs at the same level is too lenient. Instead, students should be limited to enrollment in a total of two programs at the same level. One of the main reasons we have the student and exchange visitor programs is to allow talented foreign nationals to have access to the array of outstanding academic and vocational education programs offered by U.S. institutions — and then ideally to return to their home countries to put that education to use there. It is widely recognized that "brain drain" hampers the economic development in many countries abroad. Allowing wealthy and/or privileged foreign nationals to stay here as lifelong "students" undercuts the goal of helping developing nations build human capital.
- Preparation for Departure Grace Period Change to 30 days (from 60 days). This change will align the program rules more closely to the reasonable needs of student/exchange visitors. Most bonafide student/exchange visa holders would not need more time than 30 days to wrap up their affairs upon completion of the degree program. Those requiring more time can file an application for an Extension of Stay (Form I-539) and make the case for additional time to immigration officials. These individuals should not be required to appear for an interview with immigration officials, but should be required to submit evidence of their ability to finance their additional stay and submit an itinerary and/or information on where the individual will be residing during the extra time here. In addition, the I-539 form should be amended to include a requirement for the individual to waive their ability to contest deportation in the event of overstay or violation of status, similar to a provision required of visa waiver program travelers ("WAIVER OF RIGHTS: I hereby waive any rights to review or appeal an immigration official's determination as to my admissibility, or to contest, other than on the basis of asylum, any action on deportation, in the event that I fail to depart the United States at the conclusion of my authorized duration of stay or fail to comply with the terms of my admission.")
- Timely Filing. The section of the notice on Automatic Extensions of Status makes numerous references to the requirement for "timely filing" of petitions or other immigration benefit applications, to receive an automatic grant of an extension of stay, for example. An application is considered to be "timely filed" if it is submitted any time before the expiration of the authorized period of stay. This definition of "timely filed" encourages aliens who may not have a bonafide reason to prolong their stay to take desperate measures at the last minute in order to be granted more time in the United States. The agency should instead have a system that requires earlier filing of applications — specifically 30 days before the expiration of current status (not counting the 30-day grace period of departure preparation) — to eliminate the likelihood of last ditch efforts to stay, to encourage aliens to be aware of the deadlines, and to prepare to meet these deadlines if they hope to stay. This will also have the benefit to the aliens of lessening the likelihood that they actually will fall out of status and need some kind of bridge or temporary reprieve.
- Admission Period and Period of Stay for J Visas. For the same expressed purpose of better oversight and program integrity as stated generally for this entire proposed rule, the permissible initial periods of stay for certain J visa categories should be shortened as follows:
- Professors and Research Scholars — three years (instead of 5 years)
- Trainees (all categories) — 12 months (instead of 18 months)
- Post-doctoral and Non-degree Programs — 12 months (instead of 36 or 24 months, respectively)
- Student Interns — six months (instead of 12 months)
- Teachers — two years (instead of three years)
- Physicians — three years (instead of seven years)
- E-Verify Requirement. The proposed rule imposes a new requirement for those schools that wish to have student/exchange visitors for a period of the maximum four-year initial duration of stay to enroll in the E-Verify program. The stated reason for this reasonable requirement is for the schools to demonstrate that they are generally compliant with all immigration laws, including hiring only work-authorized individuals. Why should this requirement only be for those enrolling students for four years? If it is a good idea for institutions that host four-year foreign students to use E-Verify, then it is a good ideal for all institutions that wish to enroll foreign students for any length of time to use E-Verify. The same level of immigration law compliance and due diligence in hiring should be a pre-requisite for all organizations hosting exchange visitors as well. All schools and institutions who want to have the authority to issue I-20s should be required to use E-Verify.
Jessica M. Vaughan
Director of Policy Studies
Center for Immigration Studies