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Trump toughens penalties for foreign students who overstay visas

Students who accumulate more than six months undocumented in the United States, will now face a three year ban on re-entering the country, and 10 years for a 12 months overstay. They previously dodged the so-called '3/10-year bar' thanks to a loophole that has now been closed.
10 Ago 2018 – 12:47 PM EDT
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The Trump administration published a memorandum Thursday with the new regulation that regulates the presence of foreign students and exchange visitors with F, J and M visas, and states that those who lose their status and do not seek reinstatement may be deported from the United States. The new policy ends a loophole for foreign students who now fall under the same '3/10-year bar' other undocumented immigrants face.

The Office of Citizenship and Immigration Services (USCIS) said that "a revised final policy memorandum (PDF, 129 KB) related to unlawful presence" went into effect on August 9.

“As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories,” said Director L. Francis Cissna. “USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws. People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”

On Aug. 7, the Department of Homeland Security announced the release of a report on visa overstays which found that total overstay rates were lower last year for nonimmigrants, "but the F, M, and J categories continue to have significantly higher overstay rates than other nonimmigrant visa categories, supporting the need to address the calculation of unlawful presence for this population."

Cissna said that "people who exceed their stay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in schools are violating the terms of their student visas and should be held responsible for it."

The accumulation of illegal presence is punishable with a three year ban on re-entry to the United States if the undocumented person stay passes 180 days, and with 10 years if the time exceeds one year.

'The 3/10-year bar'

The re-entry bans were introduced in 1996 as part of a congressional effort to crack down on illegal immigration. Known as 'the 3/10-year bar,' students and exchange program participants were largely excluded as the law was applied to persons who were given a specific departure date by the INS at the time of entry. This protected holders of F and J non-immigrant visas because they are admitted for “duration of status” without a specific end date.

Before the implementation of the new regulations for the F, J and M visas, "there were doubts as to when a student or an academic became undocumented and accumulated an illegal presence," said Jaime Barrón, an immigration attorney in Dallas , Texas. "As of now, the doubts are over," he said.

Barrón also explained that, "if an F1 student leaves classes, he should know that the study center will immediately notify the Immigration and Customs Office (ICE). Also, you should know that this category of people are a priority of deportation for the government."

Who uses them

The F visa is one of the most popular categories used by students to attend schools and universities in the United States.

The visa has two categories: F1, for academic studies; and F2, for spouses and children of F1 bearers.

The J visa, on the other hand, is granted to people who travel to the United States for the purpose of academic studies, as an exchange and cultural visitor, or to train as part of an exchange program officially recognized by the United States government. The J visa has also has two categories: J1, for the exchange student or visitor; and J2, for direct relatives (spouse and minor children) of a J1 visa holder.

As for the M visa, this is very similar to the F1 because it is also for students. The difference is that it is granted to carry out certain specific studies such as vocational or non-academic programs (technical studies, for example), cooking courses, languages or flight courses."

The M visa has two categories:

M1 - M1 students can only take classes at the establishment that approved the application. Unlike F1, no career change is allowed. And students can only work within the facilities of the educational establishment.

M2 - For immediate relatives (spouses and minor children) of the holder of an M1 visa. Does not include employment authorization.

During fiscal year 2016, the Department of Homeland Security (DHS) recorded:

1,858,644 admissions of foreigners with F1 visa

505,448 admissions of foreigners with a J1 visa

18,726 admissions of foreigners with an M1 visa