Originally published by The NY Times

The Trump administration plans to crack down on international students and visitors who overstay their visas, stoking fears in the higher education community that President Trump’s aggressive immigration policies will hinder university efforts to attract the brightest minds from overseas.

In a policy memorandum, United States Citizenship and Immigration Services announced this month that it plans to change how it calculates unlawful presence for foreigners in the student visa and exchange program. It will also impose harsher punishments – up to a 10-year ban from the country – for graduates who overstay their visas.

The policy, due to take effect in August, has been criticized by higher education institutions and student advocates who say the change shows the indiscriminate nature of the Trump administration’s America First policies. They say Mr. Trump’s aggressive immigration efforts are shutting out the nation’s leading scholars, who contribute billions of dollars to the economy in the United States, staff its leading research institutions, support its most high-skilled jobs, and contribute to the president’s own goal of strengthening the pipeline to science, technology, mathematics and engineering jobs.

It is clear that in an attempt to ‘enhance public safety,’ the administration seeks to further close the door on academic talent, said Jill Welch, the deputy executive director for public policy at Nafsa, the Association of International Educators. This is yet another policy which makes the United States less attractive to talented international students and scholars.

So far, the president has focused his policy efforts on the nation’s borders, and his harshest rhetoric has targeted gang members. But Mr. Trump issued an executive order in January 2017 signaling that visa overstays would also be a target.

Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety, the order said.

It is estimated that overstays account for as many as half of the undocumented immigrants in the country, and the most recent figures released by the Department of Homeland Security show that student and exchange visitors had the highest overstay rate – 2.8 percent – among nonimmigrant visitors to the United States.

Immigration officials said the new policy aligned with the executive order.

In a statement announcing the policy, the director of Citizenship and Immigration Services, L. Francis Cissna, said that visa holders are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status.

The proposed rules would target F and M visas, which are overwhelmingly used by international students to enter academic and vocational institutions of higher education, as well as J-1 visas, which allow students, professors and visitors to participate in short-term cultural exchange programs.

Under the new policy, the government would begin to calculate what is called unlawful presence from the date that visa holders’ purpose in the country has expired, such as the end of their studies. Under the current policy, put in place 20 years ago, that calculation started once the government discovered the violation.

The new policy would also be less forgiving. Visa holders found to be in the country illegally for more than 180 days would be barred from re-entry for three to 10 years, depending on the length of their overstay. The current policy usually allows students to go back to their country and apply for a new visa, or update their visa status and return.

The harsh penalties are especially jarring because small mistakes could now carry big consequences, said Angelo A. Paparelli, an immigration lawyer at Seyfarth Shaw LLP, a firm based in Los Angeles.

For immigration attorneys, because time is of the essence, if the three- or 10-year bar is triggered, there’s not much you can do, he said.

It is common for students to fall out of compliance while awaiting a new visa or transitioning to a new one, Mr. Paparelli said. Students who use visas to stay and work after completing their degrees are particularly vulnerable. Determining whether their jobs meet certain requirements to stay is subjective. Their violations could be applied retroactively, and subject them to an automatic ban, he said.

The effect of this change will be felt by businesses, he added. It will foreclose what have been standard approaches to transitioning from student to worker, whether that’s on an H1-B or some other work visa category, or the transition to permanent residence.

Administrators who work with international students worry that they will be punished for life events that domestic students are usually supported through. Many students fall out of status because of extenuating circumstances, such as temporarily dropping below a full course load because of mental health issues, leaving school temporarily for a family emergency or picking up a part-time job to help with family finances.

A lot of this impacts things that happen when students are in crisis, when status is the last thing on their minds, said Katie Tudini, the director for international student services at the University at Buffalo.

Adam Julian, the director of international student and scholar services and outreach at Appalachian State University, said international students are among the most scrutinized populations in the immigration system because their visas require constant reporting of enrollment information, such as addresses and full-time status in school. But now, even the smallest miscommunication with school officials could lead to a violation.

We’ve always stressed compliance with students; that’s not changing, Mr. Julian said. But we will just be especially vigilant on advising students that this is the new reality: The U.S. is ultimately going to be a country that does not want to benefit from everything that international scholars have to offer.

College administrators have already noticed that the international talent pool is shrinking.

Last fall, the Institute of International Education, which produces a report on international student enrollment trends, noted that in fall 2016, American higher education saw the first drop in new international students. The decline occurred at the end of the Obama administration, but also during the bitter presidential campaign. In a follow-up survey of 522 institutions one year later, the first international freshman class under Mr. Trump, the organization found a 7 percent decline in new international enrollments, with 45 percent of the institutions surveyed reporting a decrease.

According to a biannual report issued last month by the Department of Homeland Security, there were more than one million international students seeking degrees in the United States.

But there was a slight decline – 6,210 students, or 0.5 percent – in the number of students studying on F and M visas from March 2017 to March 2018. While the visa data included K-12 education, 85 percent of student visa holders attend colleges and universities. The report said that a majority of students seek bachelor’s and master’s degrees in business, engineering or computer science. It also noted a sharp decline in the number of students coming from Saudi Arabia and South Korea.

These students and scholars are considered the most brilliant minds in their field, and they are not coming here with the intention to infringe the law and intentionally overstay in the country, said Karen F. Da Silva, an international student advocate for the National Association of Graduate-Professional Students.

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