The United States hosts more international students than any other country in the world. These students contribute tuition revenue, participate in academic research, and gain exposure to American institutions and values. But welcoming foreign students does not require giving them an effectively open-ended right to remain in the country.
The Department of Homeland Security recently took an important step toward restoring the distinction between temporary (nonimmigrant) and permanent (immigrant) visa categories. Under a final rule published July 17, foreign students, exchange visitors, and representatives of foreign media — nonimmigrant visa categories — will no longer be admitted for an indefinite period, called “duration of status.”
Instead, they will receive a fixed period of authorized stay related to the length of their program or activity. For foreign students specifically, this means they will be authorized to stay in the U.S. for the length of their program or for four years, whichever is shorter, unless they are approved for an extension.
This brings the policies governing these categories into line with most other nonimmigrant categories. Most temporary visitors admitted to the U.S. receive a specific date by which they must leave or obtain permission to remain longer. Foreign students in the F visa category, exchange visitors in the J category, and media representatives in the I category, however, have historically been treated differently. Rather than receiving a fixed departure date, they have generally been admitted for duration of status.
This policy, however, delegated too much control over an alien’s stay in the U.S. to schools, program sponsors, employers, and the aliens themselves. Immigration officers may not have a regular opportunity to determine whether an alien remains enrolled as a student, is continuing authorized employment, or is otherwise complying with the terms of their admission.
Although schools and program sponsors report information through federal databases, administrative reporting is not a substitute for formal adjudications. Schools and employers are not immigration-enforcement agencies, and their institutional interests do not always align with those of the government. An institution collecting tuition from a foreign student, for example, may have little incentive to scrutinize prolonged enrollment.
Duration of status also created needless uncertainty about when an alien’s authorized stay ends and has made enforcement unnecessarily complicated. Under this system, a person admitted under duration of status could violate the terms of his status without being detected for months or years, and without beginning to accrue unlawful presence for purposes of federal law’s three- and 10-year reentry bars. In many cases, that clock would not begin until an immigration judge determined that a status violation had occurred, directly undermining Congress’s scheme to discourage visa overstays.
Critics will characterize the change as hostile to foreign students and damaging to American higher education. But requiring an alien periodically to demonstrate eligibility for temporary immigration status is not an attack on international educational exchanges. It is ordinary and common-sense immigration administration.
For example, under DHS’s new rule, a bona fide student who needs more time to complete a degree will be able to request it. A doctoral candidate conducting legitimate long-term research will not have to abandon the program after four years. The student will simply have to obtain authorization to remain (known as an “extension of status”), a requirement already imposed on many other categories of temporary visitors.
This periodic review serves an important purpose. It will give DHS an opportunity to verify that the student is still pursuing the activity for which the visa was issued, remains eligible for that classification, and has complied with applicable immigration requirements. It also allows the government to conduct updated security and background checks when appropriate.
The fixed-period system will impose some additional paperwork. But administrative convenience cannot justify abandoning meaningful control over the length of a temporary visitor’s admission. Congress did not create the foreign student and exchange visitor programs as entitlement to long-term residency in the United States.
‘THE RIGHT WAY FORWARD’: IMMIGRATION AND NATIONAL IDENTITY
The rule also does not undermine America’s general interest in attracting talented foreign students. The U.S. can maintain excellent universities, welcome scholars, and provide opportunities to complete academic programs while providing clear guidelines on temporary admission. Indeed, predictable rules strengthen the integrity and legitimacy of the legal immigration system.
A credible legal immigration system requires the federal government to know who has been admitted, why that person was admitted, and when their authorized period of stay ends. DHS’s new rule advances all three objectives.
Elizabeth Jacobs is the director of regulatory affairs and policy for the Center for Immigration Studies.