Four U.S. colleges have filed a lawsuit against U.S. Citizenship and Immigration Services, stating that a new policy which was implemented Aug. 9 adversely impacts international students.
Indians constitute the second-largest population of international students, behind China. About 190,000 students from India are currently studying in the U.S. or completing their Optional Practical Training.
Formerly, students who stayed on after their course of study was completed only began to accrue “unlawful presence” after the Department of Homeland Security issued a formal finding of a status violation, or the day after an immigration judge issued an order of deportation.
But under the new policy, students begin accruing unlawful presence if they stay on even one day post-graduation. Accruing unlawful presence for more than 180 days could bar them from returning to the U.S. for a period of three to 10 years. (See earlier story.) The new policy also expressly prohibits international students from working: even informal jobs such as babysitting are considered to be in violation of the new policy.
The colleges that have filed suit include Haverford in Pennsylvania, the New School in New York, Guilford College in North Carolina, and Foothill-De Anza College in Cupertino, Calif. The lawsuit was filed in district court in North Carolina.
USCIS has said that the new policy is needed to reduce visa overstays. USCIS Director Lee Francis Cissna has previously stated: “F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status.”
“The message is clear: these nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”
But critics state the new policy is unduly harsh on international students, and imposes new burdens on an already-overburdened immigration system.
"Now, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on which defendants conclude that the visa holder first fell out-of-status," the lawsuit filed against U.S. Citizenship and Immigration Services in the U.S. District Court for the Middle District of North Carolina states.
"The immigration system is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits. Thus, the new policy’s use of a backdated unlawful-presence clock will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure," stated the lawsuit.
The lawsuit filed this week lists “a multitude of ways in which a well-intentioned individual on an F, J, or M visa can be adjudicated out-of-status,” including by failing to alert his or her institution of a change of information, such as a change in address; failing to obtain approval for dropping below a minimum course load; or working without authorization or in excess of the allowable 20 hours on campus per week, reported the Web site Inside Higher Ed.
In addition to errors on the student’s part, the suit says that a student could be wrongly reported out of status because of errors made by a college official in updating the SEVIS database. Another scenario could be that USCIS retroactively determines a student fell out of status on a given date if it found that the student’s work placement through the optional practical training or curricular practical training programs did not meet the letter of the regulations.
The lawsuit states that immigration court backlogs could mean a lot more students accruing unlawful presence as they wait for their cases to be adjudicated.
“We think this is going to snare thousands upon thousands of well-intentioned students who are trying to comply, but mistakes happen or they just can’t predict what USCIS might determine down the road,” Paul Hughes, a partner at the law firm Mayer Brown and the lead lawyer for the four colleges that have sued to challenge the new unlawful-presence policy, told Inside Higher Ed.