New curbs on international students may be in the offing

Trump administration officials are seeking to justify new immigration restrictions on international students using “questionable conclusions” from DHS’s visa overstay reports that raise concerns among international students, including from India, and also among universities that feel it will increase uncertainty for students, an immigration policy expert has said.

Last week, a presidential memorandum on “Combatting High Nonimmigrant Overstay Rates” was issued citing date from a DHS FY 2018 Entry/Exit Overstay Report and states.

The April 22 memorandum said, “The Secretary of State shall engage with the governments of countries with a total overstay rate greater than 10% in the combined B-1 and B-2 nonimmigrant visa category based on the Department of Homeland Security Fiscal Year 2018 Entry/Exit Overstay Report.”

Stuart Anderson, executive director of National Foundation for American policy, a Virginia-based policy research organization, clarified that at this point it’s an item on the regulatory agenda and has not been formally proposed yet as a regulation.

“In recent years, many international students from India and elsewhere have chosen countries other than the United States to pursue their studies. Using a questionable overstay report to justify new immigration restrictions will only discourage more international students from coming to America,” Anderson, who heads the Virginia-based policy research organization, told India abroad.

“The concern from universities is that eliminating duration of status will increase uncertainty for students since it could require them to get extensions approved to stay in the United States, for example from an undergraduate to a graduate program,” Anderson told this correspondent.

In a separate development, meanwhile, within a week after the issue of the memorandum April 22, the U.S. District Court for the Middle District of North Carolina issued a nationwide preliminary injunction temporarily preventing the DHS from enforcing the USCIS’s August 8, 2018 policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status, according to the Association of International Educators, formerly known as National Association of Foreign Student Advisers (NAFSA).

The injunction came in response to an Oct. 23, 2018, lawsuit filed by a group of colleges and universities in U.S. District Court to challenge USCIS's F, M, and J unlawful presence policy. The plaintiffs asked the court to declare unlawful and vacate the August 2018 policy memo, and to enjoin the enforcement or application of the memo.,

NAFSA noted last week that the 2018 policy continues in full effect while the court decides the case. On January 10, 2019, the government filed a motion to dismiss the case filed by the group of colleges and universities.

Effective from August 8, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions.

Under that new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs, unless the student is covered by an exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official, or immigration judge made a formal finding of a status violation.

A May 1 report in Forbes said the new policy makes it easier to deport international students even if they fall out of status inadvertently. However, according to the most recent DHS data the overstay rate for F-1 students declined 42% between FY 2016 and FY 2018, falling from 6.19% in FY 2016 to 3.59% in FY 2018, the report said.

“Yet, there is no evidence this decline in the overstay rate, if DHS officials stand behind their own data, has led USCIS to reconsider the unlawful presence memo or its proposed rule, opposed by universities, to establish a maximum period of authorized stay for F-1 students effort,” the Forbes report said.

The Washington Post said April 24 that with the memo issued by Trump, the White House shifted its focus this week from the surge of families crossing the U.S.-Mexico border to the hundreds of thousands of immigrants who arrive in the United States legally and then illegally remain in the country after their visas expire. Trump issued the memo that declared visa overstay rates “unacceptably high” and calling them a “widespread problem.”

Trump gave the State Department four months to consult with Homeland Security officials and the attorney general to recommend sanctions, which he said could include suspending or limiting visas for those countries.

A 2018 NFAP policy brief said the number of international students enrolled at U.S. universities declined by approximately 4 percent between 2016 and 2017, according to an analysis of Homeland Security data. More than half of the decline in enrollment can be attributed to fewer individuals from India studying computer science and engineering at the graduate level in 2017.

The number of international students from India enrolled in graduate level programs in computer science and engineering declined by 21 percent, or 18,590 fewer graduate students, from 2016 to 2017.

“The increased difficulty in gaining an approved H-1B visa after graduation and the long waits for employment-based green cards already act as deterrents against Indian students choosing American universities,” Anderson said.

“If the administration finds more ways to penalize Indian students as well as those from other nations, then we should not be surprised when more students view other countries as friendlier places to pursue their chosen fields of study.”

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