In this series, Partner Danielle Rizzo explores how several small changes to student visa policy by the Trump Administration are having a major impact on the international student population in the United States. These policies are creating a climate of fear and are already resulting in a significant decline in the number of new international students enrolling in U.S. universities. Today begins the first in a three-part series exploring the impact of these changes.

According to the recently released 2018 Open Doors Report, the number of new international students enrolled in U.S. universities has been dropping each year since 2015. New enrollments declined 6.6 percent in 2017-2018, in line with a 6.9 percent decrease recorded the prior year, and consistent with declines first observed three academic years ago.

The annually published Open Doors Report is supported by a grant from the Bureau of Educational and Cultural Affairs at the U.S. Department of State. Open Doors provides comprehensive information on international students and scholars studying or teaching at higher education institutions in the United States, and U.S. students studying abroad for academic credit at their home colleges or universities.

While the report provides no explanations for the data, the drop in enrollment is likely caused, at least in part, by recent changes to student visa policies introduced by the Trump administration.

There have been several sub-regulatory changes in the last two years that have been implemented through policy memoranda and through small, unannounced but significant changes to the USCIS's website. Under these changes, something as innocuous as selling an item on eBay or driving for Uber or Lyft could be enough to bar a foreign student from re-admission into the United States for as long as 10 years.

The first and perhaps most significant change with respect to international students is the Aug. 9. 2018 unlawful presence memo applicable to international students and scholars with F, M and J non-immigrant status. This memo, which went into effect on its publication date, renders international students unlawfully present after a status violation, even if it was inadvertent and minor; and even if the alleged violation is not discovered until years later. This memo marks a radical shift in longstanding policy on the issue of unlawful presence.

Unlawful presence defined

"Unlawful presence" is a term of art in immigration law referring to any time accrued toward the three-year or ten-year admissibility bars to the United States. It is a separate legal concept from being "out of status," which, though unlawful, has historically been regarded as having no direct bearing on whether a three-year or ten-year bar applies.

A foreign national can go out of status for any type of status violation. For example, someone on an H-1B visa is limited to working for the petitioning employer, so if he moonlights for another company, he goes out of status. However, someone can be out of status but not unlawfully present.

Historically, USCIS guidance has held that foreign nationals begin accruing unlawful presence only upon one of the following occurrences: entry to the U.S. without inspection (unlawful presence accrues as of the date of entry); expiration of an I-94 entry document (unlawful presence accrues as of the day after it expires); or notification by the Immigration Service or an Immigration Judge that the foreign national is out of status (unlawful presence accrues as of the day of the written notice).

The rationale for selecting one of these three occurrences as the triggers for accrual of unlawful presence was never articulated in prior policy guidance. But all three triggers share in common one element of process: the foreign national is provided with specific notice of being out of status--an important procedural safeguard ensuring fundamental fairness.

Penalties for unlawful presence

Under section 212(a)(9)(B)(i) of the INA, any foreign national who accrues 180 days of unlawful presence is subject to a three-year bar upon departure from the United States; and anyone who accrues over 365 days of unlawful presence is subject to a ten-year bar upon departure.

Given the harsh consequence of accrual of unlawful presence, the procedural requirement of some form of notice being given to a foreign national that he or she has violated status is particularly necessary to ensure fairness.  This is especially true when one considers that there are many gray areas in immigration law and that one can inadvertently violate status without being aware of having done so. This is particularly true of international students, as F-1 visa requirements are often vague and subject to multiple interpretations.

Under the new policy memo, however, international students and scholars in F, M or J status are now deemed to have begun accruing unlawful presence as of the date on which they are determined to have first violated their status, whether or not they were aware of the status violation and whether or not they received any notice of that violation until perhaps years later. This means that by the time such a violation is "discovered" by the government, the student may already be subject to a three-year or ten-year bar.

Status violations

Obvious examples of student visa status violations include working without authorization or dropping below a full course load. Less obvious examples of things that may be found to be a violation of status, depending on the adjudicator or judge, include:

• Selling an item on eBay. Because F-1 visa regulations prohibit employment but do not define what constitutes employment, rendering of any service for which a person receives any form of compensation, monetary or otherwise, may be deemed to be a status violation. Since posting something for sale on eBay requires some work, the funds received many be viewed as payment for labor and therefore employment in violation of status.
• Engaging in an unpaid internship. Once again, because employment is not defined, it is unclear whether an unpaid internship for which the student has not received curricular practical training authorization would be deemed employment. The benefit derived from an employee's services is experience that the student can put on his resume to help find a future job.
• Driving for Uber or Lyft. Once again, ride sharing drivers are providing a service for a fee; it is highly likely that this type of work would be viewed as employment in violation of status.
• Working for a foreign employer. Many international students are unaware that the student visa rules prohibit them from engaging in any type of employment in the United States that is not specifically authorized, regardless of the location of the employer. Even work that is done remotely in the United States for a company located abroad is considered a violation. It does not matter that the work does not deprive a U.S. worker of his or her job; immigration regulations prohibit all employment while on a U.S. student visa.

Gotcha situation

Because the concept of employment is so open to interpretation, the possibilities for finding a status violation are endless. This new policy creates a "gotcha" situation for students who, despite trying to comply, nevertheless may inadvertently run afoul of one of the government's numerous rules and regulations. Or, even if they are in compliance under current interpretation of the rules, they may be retroactively deemed to have violated status under a new reading of the same rules at some future, undetermined date.

It should be noted that the new policy went into effect on Aug. 9, 2018. Therefore, any international students or scholars who were in violation of status prior to that date began to accrue unlawful presence on that date; and, 180 days later, will trigger a three-year bar upon departure from the United States. The date of February 5, 2019 will mark 180 days following the effective date of the memo. It is anticipated that after this date, which is fast approaching, there may be large numbers of international students who are found to be inadmissible to the United States after a visa interview or attempted reentry to the U.S. at a port of entry. Therefore, the true fall-out from this policy remains to be seen in the coming months and years.

Next week: Changes in the Notice to Appear policy