On May 10, 2018, US Citizenship & Immigration Services (USCIS) issued a policy memorandum for public comment that changes how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the US. This updated policy, which will be effective August 9, 2018, is meant to align with President Trump’s “Executive Order: Enhancing Public Safety in the Interior of the United States.” Since USCIS’s announcement of the proposed policy change, many have expressed concern, calling it restrictive and unfair since it may result in international students who unknowingly violate their immigration status being barred from the US up to ten years. Importantly, respected demographer Robert Warren has disputed a key Department of Homeland Security (DHS) report, Fiscal Year 2016 Entry/Exit Overstay Report (released on May 22, 2017), that USCIS relies on to justify its proposed change of policy for students.

Demographer Robert Warren worked at the US Census Bureau and as director of the Statistics Division at Immigration and Naturalization Service (INS), before that agency was separated and divided into three components under the DHS, and Stuart Anderson in Forbes writes that Warren is respected on “[a]ll sides of the immigration debate.” In January 2018, Warren published a study for the Center for Migration Studies, where he is a senior visiting fellow, that analyzed the Fiscal Year 2016 Entry/Exit Overstay Report. Warren found that the DHS report includes as “overstays” individuals who did not necessarily overstay, but those who DHS was unable to confirm had departed the US. “The DHS figures represent actual overstays plus arrivals whose departure could not be verified,” writes Warren. “That is, they include both actual overstays and unrecorded departures.” (Emphasis added.)

There are several reasons why DHS might not be able to confirm a foreign national’s departure in its system, as attorney Paul Virtue, a former top official at INS, tells Stuart Anderson in Forbes. “The DHS report on overstays is dependent on the accuracy of information in SEVIS (Student and Exchange Visitor Information System) 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,” Virtue says. “The system for matching data on change of status from the CLAIMS system administered by USCIS is not foolproof.”

In his analysis, Warren questions a number of the estimates in the DHS overstay report:

It is clear that the DHS estimates of overstays from Canada and from VWP [Visa Waiver Program] countries that have very small undocumented populations, as well as the total number, erroneously include very large numbers of nonimmigrants [individuals with temporary status] that departed but their departure could not be verified. Slightly more than half of the 628,799 reported to be overstays by DHS actually left the country but their departures were not recorded. After adjusting the DHS estimates to take account of unrecorded departures, as well as departures in 2016 of overstays that lived here in 2015, overstay population growth was near zero in 2016. [emphasis added]

The heart of the problem, Stuart Anderson says, is that “we simply do not know to what extent the numbers in the DHS report represent shortcomings in data collection and government systems, rather than identifiable individuals who have overstayed their allowed time in the U.S. And DHS and USCIS do not know either.”

This proposed policy change by USCIS is especially relevant since the consequences for unlawful presence are so severe. “The proposed change is operationally complex and may lead to wrongly identifying a large number of foreign students and exchange visitors as failing to maintain lawful status, thus unfairly subjecting them to the 3-year, 10-year, or permanent bars to re-entry to the United States,” writes NAFSA: Association of International Educators in the comments section on USCIS’s proposed policy. “Like American students, international students should be allowed to complete their studies at their chosen institution, without the stress or fear of being deported based on an oversight of which they may not be aware.”