The US released a policy memorandum changing the established treatment of illegal presence for overseas students. The memorandum was released by the US Citizenship and Immigration Services.
The Congress first introduced the penalty for illegal presence in 1996. It enacted the Illegal Immigration Reform and Immigrant Responsibility Act. If a person is illegally present in the US for 180 days or more, they are banned from entering the US for 3 years under this Act. An individual gets a ban of 10 years if he illegally stays in the US for more than 365 days.
The USCIS had announced the Immigration and Naturalization Service in 1997. It is, however, defunct now. Under the INS, if the authorized period of stay for an overseas student ended on a particular date, then the illegal presence began from the very next day. For all students, illegal presence started a day after an immigration judge or a govt. official determined that the authorized stay period had passed.
Under the new policy memorandum for overseas students, the illegal presence for F, J, or M visa holders will relate back to the date when the student’s visa status lapsed. It will be counted from the day when the immigration judge or official determines that the student has fallen out of status. In short, the US will backdate the day of illegal presence to the day when the authorized period of stay got over.
On 23rd October 2018, many colleges in the US challenged the memorandum issued by the USCIS. They filed a complaint against USCIS in the federal court of North Carolina, as per Mondaq. In their complaint, the colleges stated that backdating the illegal presence day is not fair. It will subject many international F, J, and M visa holders to 3 and 10-year bans. The overseas students will have no chance to correct the same.
The colleges also argued that the new policy will subject many international students and employees to reentry bars. Backdating the illegal presence date could put a ban on many well-intentioned students and employees.
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