Important Issues Regarding Student Visas

By: Attorney Sara N. Cross

Student visas, known as F-1, J-1, and M-1 visas, allow them to lawfully reside and study in America. An average of 800,000 foreign nationals obtain student visas to the United States each year. These student visas, known as F-1, J-1, and M-1 visas, allow them to lawfully reside and study in America. When seeking to attend school in the U.S., it is common for foreign nationals to obtain assistance from companies or individuals who purport to help facilitate the student visa process. Unfortunately, the wrong help can have dire consequences for the student and any future plans he or she may have for travel or residence in the U.S.

Recently, Immigration and Customs Enforcement (“ICE”) announced that it had charged eight people from Michigan, Florida, and Virginia with conspiracy to commit visa fraud and harboring aliens for profit. These indictments were a result of ICE’s undercover operation in which they created a false private university called the University of Farmington. The criminal charges allege that the defendants conspired with each other and others to help foreign nationals illegally remain in the U.S. under the guise of being students attending an accredited university who were maintaining valid immigration status in the U.S. as students.  The defendants would allegedly assist the foreign national “student” in obtaining fraudulent immigration documents from the school and creating false student records that would be used to demonstrate to immigration officials that they were abiding by the terms of their student visa, thus allowing them to continue to living and working in the U.S. ICE states that the defendants made over $250,000 from the more than 600 people they assisted.

Students enrolled at the university had to pay tuition and the school was on the Department of Homeland Security’s list of certified schools for international students. The school had its own website, as well as its own Facebook and Twitter accounts. But ICE alleges that all the students knew that this university scheme was fraudulent, as the school had no instructors or any actual classes. Dozens of students have also been arrested on immigration violations in conjunction with this operation and face potential deportation. A spokesman for ICE stated that all the students that were arrested originally entered the U.S. on valid F-1 visas after being accepted to legitimate schools, then later transferred to the University of Farmington.

For F, J, and M nonimmigrants, maintenance of valid student status means strictly adhering to the requirements for each visa in terms of school enrollment, prohibitions against unauthorized employment and other such activities, as well as completion of the program within a certain time frame. Importantly, the U.S. Citizenship and Immigration Service (“USCIS”) issued a new Memorandum in 2018 concerning a policy change in how they will determine visa violations for F, J, and M nonimmigrants and when a person will begin to accrue unlawful presence in the U.S. as a result. This new policy is a significant change from USCIS’ prior policy. Now, a person’s unlawful presence in the U.S. will begin to accrue the day after the date a status violation occurs.

This is immensely important, as accrual of unlawful presence in U.S. can result in bars to reentry into the U.S. For a person who is unlawfully present in the U.S. for more than 180 consecutive days but less than one year, who then departs the country, they will be barred from reentry for three years. For a person who is unlawfully present in the U.S. for one year or more consecutively, who then departs, they will be barred from admission to the country for ten years.

The effect of this new policy approach expands the very definition of overstay of a student visa. It allows adjudicators to search for any visa status violation and calculate unlawful presence retroactively without notice. Therefore, even though a person may enter the U.S. on a valid student visa, which most often designates their authorized period of stay as “D/S” (Duration of Status), if at any point after entry this person violates the provisions of their student visa, even if they are not aware of the violation, they may begin to accrue unlawful presence. This accrual of unlawful presence may lead them to being barred from reentering the U.S. in the future.

Maintenance of valid student visa status can be complex, especially with constantly changing laws and policies. It is important for those present in the U.S. on a student visa to consult a knowledgeable immigration attorney who can evaluate their specific circumstances and provide them with expert advice.