Announcement

Collapse
No announcement yet.

Article: Why The Proposed USCIS Memo on Unlawful Presence for F, J and M Nonimmigrants Will Cause More Trouble for Government Itself? By Xiaojie (Marta) Meng, Deok (Doug) Song

Collapse
X
Collapse

  • Article: Why The Proposed USCIS Memo on Unlawful Presence for F, J and M Nonimmigrants Will Cause More Trouble for Government Itself? By Xiaojie (Marta) Meng, Deok (Doug) Song

    Why The Proposed USCIS Memo on Unlawful Presence for F, J and M Nonimmigrants Will Cause More Trouble for Government Itself?

    by


    On May 10, 2018, U.S. Citizenship and Immigration Services (“USCIS”) proposed a policy memo regarding the accrual of unlawful presence for F (student), J (exchange visitor), and M (vocational student) nonimmigrants. USCIS seeks public comment regarding the proposed changes until June 11, 2018.

    The proposed changes unfairly applies the law and triggers unlawful presence accrual for unsuspecting F, J, and M nonimmigrants who may not reasonably know about technical violations of status until years after the fact. Also, the proposed rule is inconsistent with existing statutes, regulations, and interpretations. The new policy change will create unintended legal and practical problems for all interested parties, including the U.S. government, nonimmigrants in these status, and the general public associated with these individuals. Thus, we respectfully and strongly urge USCIS to reconsider the implementation of the proposed policy and withdraw the proposed memo to take more time to thoroughly review it.

    1. Implementation Of The New Policy Will Create Uncertainty Over Accrual Of Unlawful Presence By Retroactively Triggering Unlawful Presence Period To Unsuspecting F, J, And M Nonimmigrants Who May Not Reasonably Be Aware Or Have Knowledge Of Their Status Violation Due To Technicalities And Will Not Have Reasonable Opportunity To Affirmatively Mitigate The Unlawful Presence Accrual Period.

    According to the proposed policy, an F, J, or M nonimmigrant will begin accruing unlawful presence on the day after the nonimmigrant fails to maintain his or her status. This is a significant departure from the current policy and could lead to extremely harsh consequence of 3- and 10-year bars to entry to students and exchange visitors who may only reasonably find out about the unlawful presence accrual until it is too late to make any change.

    Under the existing policy, an F, J, or M nonimmigrant starts accruing unlawful presence on the earliest of the following:

    · The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;

    · The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M nonimmigrant was admitted for a date certain; or

    · The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) ordered the alien excluded, deported, or removed (whether or not the decision is appealed).

    Thus, an F, J, or M nonimmigrant will clearly be aware of the starting date of the accrual of unlawful presence and can make affirmative plans to comply with the law to avoid the potentially devastating consequences of unlawful presence.

    Under the proposed policy, effective August 9, 2018, an F, J, or M nonimmigrant starts accruing unlawful presence on the earliest of the following:

    · The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity ;

    · The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);

    · The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or

    · The day after an immigration judge or, in certain cases the BIA28 orders the alien excluded, deported, or removed (whether or not the decision is appealed).

    The changes proposed under the new policy can dramatically affect F, J, or M nonimmigrants by retroactively triggering unlawful presence to an unsuspecting student or exchange visitor who unknowingly engaged in a technical violation of their status. For example, regulations regarding employment for F students are complex, and many includes technical requirements that many students do not understand or are not even aware of. For instance, if the new rule goes into effect, an 18-year college freshman who, in good faith, volunteered for an off-campus internship without CPT could reasonably not find out about this potential violation of status until 3 or 4 years later after graduation during the H1B petition adjudication. Thus, due to the new policy change, this 21 or 22 year old person would unknowingly accrue 3 to 4 years of unlawful presence and will be barred from returning to the U.S. for 10 years.

    The new proposed policy unnecessarily creates uncertainty over the trigger date of unlawful presence and in the process severely punishes unknowing, unsuspecting students (many of whom are young people just starting their life) from returning to the U.S. for 3 or even 10 years.

    Moreover, as will be discussed below, the proposed policy change does not only revise AFM Chapter 40.9.2. The proposed revision will have ripple effects that create inconsistencies and contradictions with existing policy and interpretations of the law within DHS and with Department of State.

    2. The USCIS Policy Memo Confuses the Distinction Between Violating Status and Unlawful Presence, Which Has Been Consistently Recognized in INA 212(a) and 237(a) As Pivotal to the Application of Other Sections of the INA

    The proposed policy memo at hand fails to distinguish between violating status and unlawful presence when determining the applicability of the guidance and policies contained in the memo. Existing statutes clearly and separately distinguish between these two distinct legal concepts. To disregard the need to delineate the applicability of published guidance to each of these concepts is arbitrary and capricious and contradicts existing government policy and interpretations.

    INA 212(a)(9)(B)(ii) defines the construction of unlawful presence circumstances: “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled” (emphasis added). The statute explicitly reserves unlawful presence for circumstances in which status has expired and no other period of stay has been authorized by the Attorney General. INA 237(a)(1)(B) further defines unlawfully present aliens as a class of deportable aliens and as “[a]ny alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i)” (emphasis added). The statutes explicitly define unlawful presence as an expiration, as opposed to a mere violation, of status; an unlawful entry into the United States; or an affirmative revocation of documentation authorizing admission into the United States. A revocation would entail, for example, a determination by an immigration judge or the Department of Homeland Security, and unlawful presence would trigger at the moment of such action.

    Notably, INA 237(a)(1)(C)(i) specifically distinguishes nonimmigrant status violators from unlawfully present aliens, and separately defines nonimmigrant status violators as “[a]ny alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248, or to comply with the conditions of any such status.”

    Thus, INA clearly distinguishes between status violations and unlawful presence as separate legal concepts with different legal consequences. Congress has chosen to distinguish these legal concepts and impose different severities of repercussions, likely because unlawful presence involved affirmative intent to stay beyond authorized period of stay whereas status violation could involve negligence in understanding requirements of maintaining a status, which often includes various technical violations. Nonimmigrants should be reasonably aware of when their authorized stay expires, and staying in the United States beyond such expiration assumes a level of intent, whereas a violation of status may be the mere product of negligence. The new policy would blur the distinction of these two statutory concepts, which would effectively create inconsistencies among different sections of the INA statues without a good policy rationale.

    The USCIS policy memo, at a minimum, guarantees the avoidable outcome of an inconsistent statutory framework for immigration law and will inevitably lead to unnecessary litigation over the applicability of certain sections of immigration law and existing policy manuals.

    3. The Proposed Policy Amends AFM 40.9.2(b)(1)(E)(i)-(iii), Which Will Cause Inconsistency with Other Sections of the Existing Adjudicators Field Manual

    The policy memo at hand primarily addresses AFM 40.9.2(b)(1)(E)(i)-(iii), which outlines guidance on how to determine when an alien present in lawful status as a lawful nonimmigrant accrues unlawful presence. The current Adjudicators Field Manual (“AFM”) states “status violation” and “unlawful presence” as two different concepts and does not confuse the two.

    AFM 40.9.2(a) in its entirety is devoted to distinguishing between unlawful status and unlawful presence. In fact, the AFM states: “To understand the operation of sections 212(a)(9)(B) and 212(a)(9)(C)(i)(I) of the Act, it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (“period of stay not authorized”). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same.”

    Amending AFM 40.9.2(b)(1)(E)(i)-(iii) would directly contradict the overall principle of distinction between unlawful presence and status violation under AFM 40.9.2(a). However, the memo does not touch on the relevance or application of AFM 40.9.2(a) moving forward and, as such, ensures that adjudicators will apply immigration laws in an unpredictable and inconsistent manner. This confusion would not live in just this particular set of subsections of the AFM and INA, but would also extend to many other parts of the present immigration law framework.

    4. The Proposed Policy Revision Will Contradict the Department of State’s Guidance and Interpretations.

    The policy memo’s guidance, if implemented, would also create irreconcilable inconsistencies between the Department of Homeland Security and the Department of State on the treatment of F, J, or M nonimmigrants who violate their status.

    The Department of State Cable on Revised 222(g) Guidance (March 1998) interprets INA 222(g) and related unlawful presence accumulation for nonimmigrants. The Department of State’s position has not been revised since this cable and effectively agrees and is entirely consistent with the Department of Homeland Security’s current policy for determining unlawful presence for nonimmigrants. The USCIS policy memo makes no mention of this direct conflict of interpretations and has no jurisdictional impact over the Department of State. Thus, the new policy will create a situation where DHS and DOS will have to enforce different interpretations on same fact patterns involving F, J, or M nonimmigrants. To enact a rule without considering other agencies’ abilities to adjudicate matters based on the same statutes is to overreach beyond the limit of a single agency’s rulemaking authority. An agency, of course, does have rulemaking authority, but should not knowingly affect other agencies’ abilities to apply underlying statutes in a consistent manner without due consideration.

    5. The Proposed Memo Will Not Achieve the Goal It Sets Out to Achieve And Will Likely Burden the Already Overburdened Immigration System.

    The proposed policy memo claims “to reduce the number of overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under INA 212(a)(9)(B) and INA 212(a)(9)(C)(i)(I)….” However, as the above analysis reveals, the proposed policy revision, if implemented, will create chaos, confusion, and uncertainty within USCIS and among agencies when implementing the unlawful presence ground of inadmissibility under INA 212(a)(9)(B) and INA 212(a)(9)(C)(i)(I) than to improve it. Rather than improving the system, it will likely burden the already burdened immigration system by turning unsuspecting students and exchange visitors from re-entering the U.S. for 3 or even 10 years without their knowledge and without providing them the opportunity to affirmatively mitigate such harsh consequence.

    The current immigration law framework already penalizes violations of status. To impose additional penalties that are typically reserved only for those who accrue unlawful presence would be both excessive and unnecessary. Violating status already bears the potential penalties of not being able to change, extend, or adjust status. According to INA 237(a)(1)(B), violating status can also lead to deportation since “any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i), is deportable.”

    These consequences give F, J, and M nonimmigrants sufficient incentives to avoid status violations and to lawfully pursue their educational or vocational pursuits. The current immigration law framework understands and recognizes the nuances between violating status and unlawful presence and ensures that each bears their own commensurate consequences.

    The USCIS Policy Memo as written will add no value to the current immigration system and will create more confusion and inconsistencies among agencies relying on statutes and guidance contained in the memo. Changes in immigration law policy should be taken with careful consideration and with in-depth understanding of its legal and practical ramifications as well as the interplay of the legal interpretation. As such, the proposed policy memo should be withdrawn and amended to better distinguish between violating status and unlawful presence to avoid the foreseeable inconsistent misapplication of immigration laws to F, J, and M nonimmigrants and retroactively triggering 3- and 10-year bar to entry to students or exchange visitors who may not know about their status violation and likely will not have the opportunity to affirmatively minimize the unlawful presence accrual period.

    6. Conclusion and Suggested Solution

    The Department of Homeland Security has a legitimate concern for students staying in the United States beyond the ending dates of their educational, exchange, and vocational programs. The solution to such concerns should not be the narrow, short-sighted, and misguided reinterpretation of immigration laws proposed in the current policy memo. The issue should be addressed either through a more comprehensive consideration of all the agencies and statutory frameworks affected by the distinction between violating status and unlawful presence or, more realistically, through effective implementation of the SEVIS system and the institutions with responsibilities over these students or exchange visitors.


    About The Author

    Xiaojie (Marta) Meng Xiaojie (Marta) Meng is a co-founder and a partner of Song & Meng, P.C. She is a licensed attorney in the state of California. She practices exclusively in the field of immigration and nationality law. Her current practice focuses primarily on business/employment-based immigration, investment-based immigration, non-immigrant work petitions, and immigration aspects of company compliance.




    Deok (Doug) Song Deok (Doug) Song is a co-founder and a partner of Song & Meng, P.C. He is a licensed attorney in the state of California. He primarily practices in the area of business immigration law. He has successfully handled wide range of cases, including EB1, NIW, EB5, H1B, L1, and O1, representing postdocs, recent college graduates, small and large companies, investors, and artists.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

      Posting comments is disabled.

    Categories

    Collapse

    article_tags

    Collapse

    There are no tags yet.

    Latest Articles

    Collapse

    • Birthright Citizenship Is Not A Legal Assumption; It's the Law by Kristie De Pena
      ImmigrationDaily

      08-21-2018, 03:12 PM
    • Blogging: Trump's "National Security" Abuses: First, Muslim Ban; Next, Security Clearance Revocation.. By Roger Algase
      ImmigrationDaily
      Trump's "National Security" Abuses: First, Muslim Ban; Next, Security Clearance Revocation. Trashing Immigrant Rights Endangers Freedom of All Americans.

      CNN reports on August 21 that 175 former US officials have denounced Donald Trump for revoking the security clearance of former CIA director John Brennan for speaking out in opposition to Trump.

      https://www.cnn.com/2018/08/20/polit...ent/index.html

      Presidential use of "national security"
      ...
      08-21-2018, 12:54 PM
    • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko
      ImmigrationDaily

      If you are having difficulty viewing this document please click here.

      08-20-2018, 08:15 AM
    • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
      ImmigrationDaily
      Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
      08-17-2018, 11:12 AM
    • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
      ImmigrationDaily
      Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
      08-16-2018, 02:32 PM
    • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.
      ImmigrationDaily

      Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence

      by


      On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families). https://www.uscis.gov/sites/default/...immigrants.pdf

      USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors https://www.uscis.gov/news/uscis-iss...hange-visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

      08-15-2018, 12:57 PM
    Working...
    X