Unlawful Presence for Students

Introduction

The start of a new academic year will bring thousands of foreign nationals to the United States to study at one of the nation’s many rigorous academic institutions.  The United States derives many benefits from allowing foreign nationals to study at its colleges and universities, including but not limited to, diversified classroom discussions and enriched collegiate clubs and extracurricular activities.

Unlike their American colleagues, foreign national students must maintain lawful  presence and abide by all of the United States Citizen and Immigration Services (USCIS) requirements.  Traditionally, if a student failed to meet the requirements of his or her visa, then unlawful presence would not begin to accrue until the day after the USCIS made a formal finding that a nonimmigrant status violation had occurred or an immigration judge ordered the student excluded, deported, or removed, whichever came first.

However, the USCIS has announced in its May 2018 memorandum a change in its policy for calculating when a student will begin to accrue unlawful presence. Beginning August 9, 2018, a student will begin to accrue unlawful presence the moment the student’s F-1 status has expired or the student’s admitted purpose has ended.

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Freedom of Information Act Request

A foreign national applying for a visa, a green card, or other immigration services may encounter delays or be denied if the U.S. immigration services rely on background information that the foreign national did not know existed. The Freedom of Information Act (FOIA) allows individuals to request information from federal agencies that may be critical to obtaining entrance into the United States. The U.S. government maintains all background information in an “A file,” which can usually be obtained in part or in its entirety with a FOIA request.

The FOIA allows any person, regardless of immigration status, to access information from a federal agency as long as he /she reasonably describes the records requested and submits the request in accordance with the agency’s rules. A person is defined as an individual, partnership, corporation, association, or public or private organization that is not a governmental agency. Therefore, an employer or attorney may request the information on a foreign national’s behalf as long as the third-party has the permission of the foreign national.

Before filing a FOIA case, the applicant should consider whether the information he/she requires is specific to them or general information about the agency. If the information is general, the agency may have proactively released the information on its website. Federal agencies are statutorily required to proactively disclose all final opinions and orders rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals. If an individual seeks additional information that is not proactively disclosed then he/she should consider submitting a FOIA request to the appropriate agency.

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