Last week, USCIS issued a new policy memorandum that significantly modifies a long-standing government interpretation of what constitutes unlawful presence for students and exchange visitors. Unlawful presence is an important concept for individuals who stay past their authorized periods of stay because accrual of six months or more may trigger mandatory bars to admission. These bars are colloquially known as the three (when six months or more, but less than one year, of unlawful presence has been accumulated) and ten-year (when one year or more of unlawful presence has accrued) bars. The bars are triggered upon departure of the individual from the United States and essentially ban the applicant from re-entry for three or ten years, absent a waiver.
In April of 2017, USCIS released special instructions for B-1/B-2 visitors looking to enroll in school. The bulletin clarifies that unless and until a change of status application (Form I-539) has been approved, it is not permissible for a foreign national to enroll in school while in B1/B2 status. In contrast to coming to the United States directly as an F-1 or M-1 student, the process of transitioning from visitor to student while already inside can be convoluted and formidable. Being accepted into a school and receiving an I-20 is only the first step in changing one's status. The prospective student must also prudently plan and coordinate one's anticipated start date with the end date of one's initial authorized stay. If, for example, a visitor's stay is due to expire more than thirty days prior to the I-20 start date, USCIS will likely deny the change of status application. USCIS recommends that applicants in this type of situation consider filing another I-539 to extend one's visitor's status while the initial I-539 awaits adjudication; alternatively, the applicant might leave before his/her stay is up and apply for the student visa abroad.
What type of visas are available?
What is F-1 Status?
On August 9, 2012, ICE (Immigration and Customs Enforcement) issued a Withdraw of Notice to PC Tech, thereby stripping the school of its ability to enroll foreign students. (PC Tech does have a right to appeal the decision.)
The link can be found here: http://www.ice.gov/sevis/alerts/pc-tech.htm.
It also released guidance to foreign students currently enrolled at PC Tech Learning, many of whom--up to now--were still understandably confused as to what their status is and what their options are. Fortunately, unlike the way in which the Department of Homeland Security aggressively rounded up (sometimes arresting) and summarily ousted students enrolled at Tri Valley University in California, the government seems to be taking a more measured approach to the general student body here, who in all fairness, don't seem to be involved in the activities PC Tech's officials are accused of.
Just a few weeks ago, a school in Iselin, New Jersey, was "busted" by DHS for allegedly running a scam involving foreign students. This only underscores again how important it is for prospective foreign students to be aware of what schools are and are not allowed to do, as well as what their own obligations and limitations are as a foreign student. While the school has not been proven guilty and will certainly be entitled to its day in court with a presumption of innocence, there have been scandals involving schools that directly affect their students. Even when students are innocent of any wrongdoing and actually victims, many have been forced or pressured to leave, some even deported. Students need to make sure that they are enrolled in schools approved by immigration, of course, to enroll foreign students. They also need to be cognizant of their obligations with respect to classroom time and hours and carry a full course load. Those who do not will fall out of compliance and be reported by SEVIS (Student Exchange Visitor Information System). From there, it is only a matter of time before ICE is made aware of the violations.
In breaking news, the AILA National Office has indicated that The White House will be making an announcement today regarding DREAMers. "DREAMers" are generally those individuals who came to this country at a young age, and through no fault of their own, may have fallen out of status. The announcement will be made at 1:15pm.
We will post more after we learn the details.
Last year, Georgia passed extremely anti-immigrant legislation in the form of HB87. Under the Georgia Illegal Immigration Reform and Enforcement Act of 2011, it is considered a crime to transport as well as harbor undocumented people. The law, patterned after Arizona's notorious anti-immigrant law, imposes monetary penalties as well as incarceration under certain conditions. Perhaps not surprisingly, The American Educational Research Association recently made a decision to move its 2013 conference from Atlanta to San Francisco, California. After much controversy, AERA 's executive board decided it was best to move the conference to prevent involvement of their members in what might be considered criminal behavior. Furthermore, moving the conference would uphold their values of equity, equality, and transparency. Participants would continue to feel welcome and undocumented students would not be discouraged from attending out of fear. In light of the situation, this appears to be a smart, justifiable decision.
ICE just released a new list of approved SEVP (Student Exchange Visitor Program) schools on its website. Only these designated schools are authorized by immigration to enroll foreign students under F and M visas. Given all the rampant fraud going around these days, any prospective foreign student should definitely consult this list to make sure the school they want to attend is on this list.
Those of you who have been following the plight of foreign students in New Jersey and elsewhere might be interested in knowing that the Department of Education and Department of Justice jointly issued a letter on May 6, 2011, addressing children's rights to elementary and secondary education, regardless of immigration status. Coined a "Dear Colleague Letter," the statement reminds schools that under federal law, state and local agencies are required to provide children with education through secondary school, and that any policies that discourage a child's enrollment due to immigration concerns or issues "contravene" Federal law. Under our federal laws as well as caselaw, the immigration status of a student--or his/her parents(s)--at the elementary and secondary levels is simply irrelevant.