The Trump administration issued a draft policy late on Friday that tightens the rules relating to calculation of visa overstay by foreign students.

The policy is scheduled to come into effect from August 9. Under the proposed policy, which is currently open for public comments, unlawful presence days (stay beyond a student's visa tenure) will be computed from the day the student fails to maintain ‘immigration status’.

According to the draft policy memorandum, immigration status is not maintained from the day students stop pursuing their course of study, engage in unauthorised activity or complete their programme and authorised grace period. For example, students on an F-1 visa are given a grace period of 60 days post completion of their study to change their status (say to a work visa) or to leave the US.


Under current guidelines, the clock to calculate the number of days of unlawful presence begins ticking only from the day authorities discover the violation or an immigration judge passes an order, such as for deportation.

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The proposed change will result in more days being counted as unlawful presence. Based on the number of unlawful days, a student can be barred from entering or staying in the US or obtaining permanent residency. To illustrate, students who have accumulated more than 180 days of unlawful presence during a single stay may be subject to a ban of 3-10 years from re-entering the US, depending on the number of days overstayed. An overstay of more than a year could result in a permanent ban.

“The new policy can create hurdles for students who fall out of their immigration status and wish to apply for a visa or change their status to that of a US permanent resident,” stated Fragomen, a global firm specialising in immigration laws.


This policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) said that to assess whether there has been an overstay, the officer can look into the immigration history of the student, which would include information contained in the Student and Exchange Visitor Information system (SEVIS) system and various records. The officer can even solicit details from the students through a recognised process.

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After the Chinese, Indians are the largest group of foreign students in the US. International Student Data from the Open Doors Report (2017) shows that there are 1.86 lakh students in the US. A Homeland Security report for fiscal 2016 (the latest publicly available data), shows that 4,575 of the 98,970 students from India scheduled to leave the US or change their status had violated norms and overstayed.

“USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M non-immigrants are admitted to the US for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another lawful immigration status,” said USCIS director L Francis Cissna in an official statement.

(This article was originally published in The Times of India), 14 May 2018

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