Jacob Tingen: Welcome again to Nation of Immigrants. Today we are going to talk about duration of status and we’re also going to talk about these nationwide injunctions and some legal stuff going on there. On the last episode we talked about the Supreme court and some thoughts that Neil Gorsuch had discussed. We already got a response on immigration policy and a nationwide injunction, so we’re going to dive in there here after the intro.
Announcer: You’re listening to Nation of Immigrants.
President Obama: America is a nation of immigrants.
Announcer: A podcast about US immigration law with your host Jacob Tingen.
Jacob Tingen: All right, so it’s always fun to get back to Nation of Immigrants. I enjoy doing this and kind of talking about a lot of these issues. Today the headline that caught my attention was more about student visas, and it’s interesting when you start to get familiar with passports and the things that are in them.
Jacob Tingen: You’ll see indications in a passport stamp, B-1, B-2, different kinds of visitor’s visas and non-immigrant stamps, Js and Hs, and that kind of stuff, and the whole alphabet soup. But what’s interesting is one of the notations that is common with student visas is DS, which stands for duration of status. What’s interesting about student visas is that they are non-immigrant visas, so if somebody comes to study that’s for a temporary period, but that temporary period is uncertain because some degree programs take four years, some take a little more, some take a little less.
Jacob Tingen: Then depending on the kind of the course of study and the student themselves and changing degree requirements, it’s really anyone’s guess as to how long it might take to graduate. But it also does generate a certain amount of uncertainty like, “How long am I allowed to stay?” and “How is unlawful presence counted?” Because when it comes to calculating unlawful presence for certain visas that a person might get later or for certain grounds of inadmissibility, this kind of thing matters quite a bit.
Jacob Tingen: There’s a regulation that’s been proposed by the Trump administration to get rid of duration of status, but instead give international students a maximum period of authorized stay. Now, even though duration of status has its issues, like how do you calculate status, it’s the way it’s been for a long time and then it also is flexible enough to allow students that chance to take a little longer to finish a degree program if that’s what they need to do.
Jacob Tingen: But the idea behind this maximum period of authorized stay, it seems to be have been proposed under this idea or this concept that international students are coming, studying and then just staying, which I don’t really think is true. I mean, if I went through the trouble to get a degree and then I just overstay, it’s not likely that I’m going to get employment through my degree, which I spent lots of money and time getting. How am I going to get employment in that degree field unless I maintain lawful status? I don’t think that that’s a legitimate reason. It’s more of an excuse to find another reason to make immigration more restrictive and we’ll look at that.
Jacob Tingen: But what’s interesting is that they’re not saying, “Oh, well there’s a maximum period of authorized stay and that’s it. You’ve got to graduate in four years or poof,” but rather it’s you’ve got to graduate within the maximum period of authorized stay or get a new approval to transition to a new school, to transition to a new degree program, to go from undergraduate to graduate school, and that to me is a problem.
Jacob Tingen: I’ll tell you why it’s a problem, because already when it comes to processing times for some of the stuff it takes forever. For some of the green card applications we’re seeing right now, it can take as much as two years for some applicants to get approved. Some petitions are taking a year or more, and so that is problematic for a lot of reasons. We’re going to talk about that here for a minute because if we then also require these student visa applicants to change their process, well then that’s an additional layer of interviews and additional layer of bureaucracy that we’re adding to the size of government and making this more expensive and more difficult.
Jacob Tingen: This article here that I’m reading estimates that extra costs incurred by international students could be as much as $1,500 or more per extension. That sounds about right. Then also it creates even more uncertainty than the duration of status policy that’s currently used because who knows how these are going to be adjudicated? What’s the legal framework for deciding who gets to stay and finish their degree program and who doesn’t?
Jacob Tingen: It doesn’t really seem to fit the purpose behind the stated reason, this whole visa overstay, again, not really a huge issue when I see my clients who are on student visas. They are dying to do everything they can to maintain lawful status, because it has to do with a career goal later on, and so they want to maintain lawful status. Overstaying isn’t really a real concern here. But then additionally, just the bureaucracy and the procedure of granting all of these extensions and the uncertainty involved.
Jacob Tingen: I wanted to read a couple of the things from the article. This is from an attorney who was recently an official, well, not recently an official, formerly an official at the INS. He says, “The DHS report on overstays is dependent on the accuracy of information in SEVIS,” and that’s the Student and Exchange Visitor Information System. It’s frequently used. Students will get a SEVIS printout and then that’s frequently used as part of renewing work authorizations, those kinds of things. It helps DHS understand where a student’s at within their visa process and their educational process. It says, “The DHS report on overstays is dependent on the accuracy of information in SEVIS, and the agency’s ability to match entry and exit information. Especially for students who, for example, may have departed through a land port of entry or have had a change of status that was not updated in SEVIS. There’s still too much guesswork built into the DHS assumptions concerning the number of overstays among the student in exchange. These are visitor populations.”
Jacob Tingen: That was a lot of big words, but let’s break it down a bit. Basically he’s saying that the inputs into the system that DHS uses to see where students are at, student visa holders are at, the information in that system is not accurate, and there’s no way to make it accurate currently, and so to just look at that data and use that as a justification for making a new rule that won’t necessarily meet the goal you’re claiming is pointless. I say this to my kids sometimes, “That’s an excuse not a reason.” That’s what it seems like here with the Trump administration is this is just an excuse to enact a more strict interpretation of immigration law, it’s not a reason. Additionally, it’s not just an interpretation, they’re promulgating rules here. The reason that the Trump administration is using this rule making regulatory process is because of Congress’s failure to act. These are things that we need to recognize. Congress really needs to make some laws here. Congress really needs to do something. But recently they’ve been giving a lot of clout and power and authority to the executive branch. That’s really what’s happening.
Jacob Tingen: The overstay argument is just an excuse, and then this article ends up saying, “Meanwhile, students in other nations are getting a higher portion of these highly skilled and highly educated students and workers that aren’t coming and building up our country anymore.” We’re not seeing the effects of that in the immediate present, but we might in the near or distant future. America benefits from immigrants. We are a nation of immigrants.
Jacob Tingen: Related to this somewhat tangentially though, I wanted to bring up just one other article. It’s on Politico. It says, “A judge permanently blocks another Trump immigration policy, and the reason why this is related tangentially is because this is a permanent injunction, which means this case ran its course. This judge Loretta Biggs said that a 2018 action by USCIS was unlawful. It had to do more with how unlawful status and duration of status is calculated.
Jacob Tingen: It was opposed by a lot of universities and colleges because they said, “Hey look, in this duration of status thing, there is, and frankly just in education and how long it’s going to take for people to get a degree, there is some uncertainty here, and we want our students to be protected. We want them to do well, we want them to feel that they can come study at our universities and then go into the job market, learn skills, return to their country if they want, be petitioned by an employer if that’s how it works out for them, but that this regulation or the rule would impact how unlawful presence is calculated. It could impact a lot of students in a lot of negative ways.” These colleges, these schools felt like they had some skin in the game.
Jacob Tingen: What’s interesting though, we’re not going to focus so much on the school visa aspect part of this article in this discussion at this point, I want to talk about what the judge had to say about issuing a nationwide injunction. Because in the last episode we talked about how the Supreme Court issued a decision, allowing public charge to go through removing those injunctions, and while the court didn’t issue an opinion necessarily, Judge Gorsuch did opine some on his feelings regarding nationwide injunctions. Here we’ve got this judge and her decision who, who essentially responds and says, “Hey, a nationwide injunction is the only way to go here,” and she explained some of her reasons and I think they’re pretty good.
Jacob Tingen: Let’s dive in to why. Gorsuch said that these nationwide orders have a tendency to sew chaos, but the judge in this case said, “A geographically piecemeal injunction would be insufficient to remedy their injuries.” She’s saying, “Look, if I limited this injunction to my circuit, that’s not sufficient because these rules, I mean, first of all, immigration is federally preempted, right? So it’s not like States or certain geographic regions can make their own laws in the area of immigration. It’s federally preempted, which means the federal government makes laws on this issue that apply through all 50 States.”
Jacob Tingen: She goes, “An injunction, which does not extend beyond the named plaintiffs,” just not just these people too, “… to reach similarly situated individuals could result in the uneven application of immigration policy,” which also makes sense. She also noted that a federal law key to the suit, the Administrative Procedure Act, tells judges to hold unlawful and set aside actions by federal agencies that fail to meet legal standards.
Jacob Tingen: She was saying this is a significant enough change that there needs to be public comment. It needs to go through this Administrative Procedure Act purpose before it can be put into law and executed in this way. That’s another reason why the injunction is necessary, because if the administration is going to do this, that should do it the right way. It says, “Under the circumstances of this case, the only practicable method of providing plaintiffs with the relief to which they are entitled is to vacate the policy and permanently enjoin its application.”
Jacob Tingen: Now will this case, this permanent injunction be appealed? Possible and likely. We’ll see what happens. But what’s interesting is that, there’s this ongoing fight over who has authority to do what when it comes to our nation’s immigration laws, and it’s a fight that’s only going to intensify, particularly under this administration that continues to take lots of action in immigration as we’ve seen.
Jacob Tingen: If you’ve been listening to this podcast, you know how I feel about a lot of these things. I think we shouldn’t make it more difficult for immigrants. In fact, we should make it easier for immigrants to come here and participate in our economy and participate in our community and in our society. I do think that it helps us as a people to have immigrants with us. I think we’re going to start seeing that being spoken about a lot more by immigrant advocates is, “Hey look, some of these first policies were against illegal immigration, but a lot of these newer policies are against legal immigration. They’re making it more difficult for families to reunite, for US citizens to fall in love and get married and bring their spouses and children and stepchildren here to the country. A lot of these policies are not good and then now we’re going to start losing out on the high skilled labor and the diversity that comes from these student visas.” That’s not good. It’s not a great end result.
Jacob Tingen: I hope you will keep listening and we’ll see more if this regulation does come out and become a real thing. We’ll discuss it more when it does. I think so far it’s just a proposed rule and then as the courts comment more and more on these nationwide injunctions, we’ll be talking about that here at Nation of Immigrants.
Jacob Tingen: Thanks again for listening. If you have any questions, feel free to reach out to us at tingen.law, also via my website at jacobtingen.com. You can follow along at this podcast at jacobtingen.com. You can donate to us there. Find us on iTunes, YouTube, Facebook, Twitter, LinkedIn, and everywhere else you have an internet connection. We look forward to seeing you often. Thanks again for coming.
Announcer: Thank you for listening to Nation of Immigrants.
President Obama: America is a nation of immigrants.
Announcer: Subscribed to the podcast on iTunes. Watch the live stream on YouTube and Facebook, or visit jacobtingen.com to learn more.