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U.S. Colleges and Universities Sue Trump Administration Over New Unlawful Presence Policy of International Students

October 25, 2018

A group of U.S. colleges and universities, including The New School in New York City and Haverford College in Pennsylvania, have sued the Trump administration this week regarding the issuance of a new regulation affecting the status of foreign students and their ability to maintain lawful presence in the United States.

The regulation, promulgated in August 2018 by U.S. Citizenship and Immigration Services (USCIS), affects the ongoing ability of F-1 students, J-1 exchange visitors and M-1 vocational students and their dependents to remain in the United States. More than 1.2 million foreign nationals are affected by the policy.

In the complaint, the universities claim that the policy is intentionally designed to impose tens of thousands of reentry bars to F, J and M visa holders and their dependents each year and will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith.

Claiming that USCIS did not adhere to formal notice requirements of the Administrative Procedure Act, the universities further claim that the imposition of a reentry bar for minor infractions, including typographical errors on standardized forms electronically submitted to Homeland Security for review and other related unintentional lapses, will interrupt and interfere with the universities' ability to attract foreign talent and maintain their tuition and costs.

The universities note that recruiting leading international students, researchers and academics to the United States is "crucial to ensuring that the United States retains its perch as the leader of the academic world." In the complaint, the institutions note that more than 30 percent of the total student body of The New School, for instance, is comprised of international students. Consequently, the schools also noted that for the period of 2016-2017, international students contributed nearly $37 billion to the U.S. economy and created or supported more than 450,000 jobs.

The schools argued that since students are not provided a date certain upon which their authorized stay expires and are admitted for a period of 'duration of stay', calculating unlawful presence is not at all straightforward.

The institutions further stated that they have already seen foreign students drop out of school to avoid accruing time after their immigration status has lapsed due to failure of the government to adjudicate applications submitted in a timely manner. The administration has recently considered furnishing official expiration dates to foreign students, although historically the agency has not wished to establish formal expiration dates for student and exchange visitor visa holders.

USCIS updated its website in April 2018, further restricting foreign students pursuing practical training in the STEM fields - science, technology, engineering and mathematics. In July 2018, USCIS released a memorandum expanding its Notice to Appear policy, which also included foreign students applying for changes of status, extensions of stay and other ancillary applications. The Notice to Appear policy was revised to specifically exclude permanent resident employment-based applications and nonimmigrant petitions filed with the I-129 form.

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