10/27/2004
Under the current law, the foreign students in
F-1, the exchange visitors in J-1 are admitted to the country in the D/S
(Duration of Status) status. The aliens in these visa categories remain "in
status" during the period when they are enrolled in the program.
Accordingly, there are no fixed dates of
authorized stay and expiration date on I-94. All other non-immigrants are
admitted to the country with a fixed date of expiration of the status. This
includes extension or change of status. The USCIS plans to remove the D/S
admission of F, J aliens.
Once this rule is enacted, the aliens in these
visa categories will be given a I-94 with a fixed date of expiration rather than
duration of status. It is anticipated that the USCIS may release this proposed
rule next year.
Currently,
any nonimmigrants in other nonimmigrant visa categories are subject to a 3-year
bar or 10-year from returning to the U.S. once they leave the country after
staying 180 days or more or 365 days or more beyond the authorized period of
stay on I-94. On the other hand, those in F and J visa status do not have a
fixed date of expiration of authorized stay on I-94 , and even if they keep
staying in the U.S. out of status after failing to enroll in the school or
exchange program or media employment, they are not subject to such 3-year bar or
10-year bar from returning to the U.S.
Accordingly,
these F and J visa non-immigrants could leave the U.S. after staying in this
country illegally for years and years and apply for a nonimmigrant visa at the
visa posts at their home countries and return to the U.S. The consular officers
cannot refuse to issue a nonimmigrant visa to such aliens on the ground of the
3-year bar or 10-year bar. For these aliens to be subject to the 3-year bar or
10-year bar, the immigration authority must determine that their status is out
of status.
This
determination can be made either by an immigration officer or an immigration
judge. Once they determine such, the clock start ticking for the 3-year bar or
10-year bar period from the date of such decision. Thus, they no longer remain
in D/S status. As a consequence, such aliens have refrained from contacting with
the immigration authorities not to invite an occasion of immigration authorities
noticing their illegal status and determining their out-of-status. Rather they
just filed a certain nonimmigration petition without applying for either change
or extension of current status for the purpose of pursuing a consular processing
of a nonimmigrant visa outside the U.S.
The upcoming proposed rule will change all these,
giving the immigration services a tight grip on the aliens in F and J visa
aliens.
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