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This month a very important victory for international students occurred. A federal judge issued a nationwide injunction on an August 2018 Policy Memo that would detrimentally affect foreign students in the U.S. The potential harm from the Policy Memo was so severe that over 50 universities and colleges around the country joined together in this lawsuit against Kirstjen Nielsen, U.S. Department of Homeland Security, L. Francis Cissna, and U.S. Citizenship and Immigration Services.

The 2018 Policy Memo was the brainchild of the Trump administration and its anti-immigrant movement. The Memo effectively turned the unlawful presence laws on their head imposing stricter standards for foreign students and creating multiple scenarios in which students could become subject to the three and ten-year bars on re-entry to the United States.

This policy memo effectively made all foreign students who violated their status “unlawfully present” from the date of their violation and potentially subject to the three and ten-year bars to re-entry to the U.S.

What does this all mean?

Any foreign national unlawfully present in the U.S. after Aug. 9, 2018, for over 6 months, may be barred from returning to the U.S. for three years. If unlawfully present for a year, that bar becomes 10 years.

Everything boils down to what qualifies as “unlawfully present.” Most foreign nationals entering the U.S. get an I-94 card with an expiration date. If a foreign national remains in the U.S. beyond the expiration date of their I-94, they can become unlawfully present. However, I-94 cards issued to students do not have clear expiration dates. Their status is dependent and managed by the institution sponsoring them. Students are issued a form I-20 or DS-2019 from their sponsor which governs the terms of their stay. A student’s stay will fluctuate depending on whether they transfer schools, stay on for another degree, accept post-degree employment. The list is endless. Thus, their I-94 will typically have a D/S for their expiration date, which stands for duration of status. Without a definite expiration date on their I-94, students could only become unlawfully present upon an official finding by an Immigration judge that they are in violation of status.

The Trump administration attempted to change this last summer. Their Policy Memo redefined unlawful presence specifically for students creating a plethora of scenarios whereby a student would become unlawfully present and subject to the bars.

While the Policy Memo has been enjoined for now, until it is officially thrown out, here are the top ten steps international students should take to ensure they remain in status:

  1. Be Proactive: Stay in contact with your Designated School Official (DSO);
  2. Ask Questions: Unlike other visas, your status is dependent on the Form I-20 or DS-2019 issued by your school or sponsoring organization. Understand that these forms must be accurate and up to date;
  3. Never Work Without Authorization: If you are unsure, speak with your DSO or consult with an immigration attorney. This includes “volunteering” which may be considered unauthorized employment in many scenarios including “unpaid internships”;
  4. Stay enrolled full-time: Do not drop or withdraw courses without first understanding the implications. Failure to maintain proper enrollment is a violation of your status;
  5. Advise your DSO of any changes BEFORE they occur: this includes new address, email, phone or any changes to your studies or training;
  6. Understand the deadlines and rules regading Optional Practical Training: May apply up to 90 days before you complete your degree, but no later than 60 days after you complete your degree;
  7. Understand the deadlines and rules regarding STEM Optional Practical Training: May apply up to 90 days before your current OPT employment authorization expires;
  8. If you are on OPT or STEM OPT, stay employed: OPT and STEM OPT allow a limited time of unemployment before you are in violation of status (90 days for OPT; an additional 60 for STEM);
  9. Check your social media: USCIS and CBP do check social media when reviewing a foreign national’s status for violations;
  10. If you believe you have violated your status, speak with an immigration attorney before departing the U.S.

Laura Rosmarin

Senior Counsel