Overstay Report Prompts Changes to Policies Regarding Foreign Students and Unlawful Presence

The Department of Homeland Security (DHS) is required to present an annual report of the number of foreign nationals who are admitted but overstay. Overstays are defined as (1) individuals for whom no departure has been recorded and are likely still in the U.S., and (2) individuals who have a recorded departure after their lawful period of admission expired. DHS is currently able to track overstays from all air and sea entries (excluding C and D visa holders) but does not have data for land entries from Canada and Mexico. The report for FY2016 indicated that over 98 percent of the 50,437,278 nonimmigrants admitted via air and sea ports in FY2016 departed the United States on time and abided by the terms of their admission.

However, some visa categories are more prone to overstaying than others. For example, the report notes that of the 1,457,556 foreign students expected to depart in FY2016, 5.48% overstayed their visa (F students – 6.19%; J students – 3.80%; M students – 11.60%). The departure rates by major source countries for foreign students is as follows: China – 94.98%; India – 95.38%; South Korea – 94.94%; Japan – 97.08%; Saudi Arabia – 93.17%; and the United Kingdom – 97.54%. On the other hand, Chad, Congo (Kinshasa), Djibouti, and Libya all have overstay rates that hover around 40%. The worst offender, Eritrea, has a foreign student overstay rate of 77.78%. (It is important to keep in mind that these countries only send a few students to the U.S. each year, so each overstay will drastically affect the final percentage.)

Possibly motivated by this data, USCIS issued a policy memorandum regarding “unlawful presence” for foreign students. Most of these individuals are admitted under a flexible “duration of status” (D/S) designation, which has historically protected foreign students from accruing unlawful presence if they violate their student status. The new memo, however, presents updated guidance for calculating the amount of unlawful presence for foreign students (F-1, J-1, M-1) and their dependents. For these individuals, unlawful presence starts accruing as follows:

• For F, J, or M nonimmigrants who failed to maintain their status before August 9, 2018, unlawful presence will begin accruing starting August 9, 2018.
• For F, J, or M nonimmigrants who failed to maintain their status on or after August 9, 2018, unlawful presence will begin accruing:
  • The day after the student no longer pursues the course of study or authorized activity/work;
  • The day after the student engages in an unauthorized activity/work;
  • The day after completing the course of study (including any OPT options and the grace period);
  • The day after the I-94 expires, if admitted until a date certain; and/or
  • The day after the student is ordered excluded, deported, or removed (whether or not the decision is appealed).

This new policy is an attempt to reduce the percentage of student visa overstays. It will take affect August 9, 2018 and will be applicable to foreign students admitted in D/S or until a date certain. Technological advancements in data collecting and sharing through the SEVIS program have made this change in policy possible. In assessing whether a foreign student accrued unlawful presence, the USCIS officer will consider all of the information contained in available DHS systems and databases, including SEVIS, as well as any other information contained in the student’s alien record. The academic and immigration community are concerned about the accuracy of the information being shared and the reliability of notifying the foreign student if a violation is found. This is especially concerning because foreign students would become subject to the three- and tenyear bars if they accrue more than 180 and 365 days of unlawful presence, respectively. Such bars are triggered when the foreign student leaves the United States.