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.

Immigration reform is sorely needed, as many activists, immigration practitioners, and (certain) politicians have been saying for the last few years. But how did we get into this immigration mess in the first place? Vox explains the 1996 immigration bill signed by President Bill Clinton that overhauled immigration enforcement in the US and consequently led to the massive deportations ongoing today as well as the huge increase in the number of undocumented immigrants in the US. This 1996 bill, the Illegal Immigration Reform and Immigrant Responsibility Act (called IIRIRA), produced key changes in American immigration law and enforcement policies.

The bill made more people eligible for deportation (i.e. removal)

Legal immigrants—including Green Card holders—can be deported if they're convicted of certain crimes, but in 1996, Congress retroactively expanded the crimes which made immigrants eligible for deportation. "Overnight people who had formed their lives here—came here legally or had adjusted to legal status, were working here, building their families, had ordinary lives in which they were on the PTA and everything else—suddenly, because of some conviction, weren't even allowed to go in front of a judge anymore,” Nancy Moravetz, a NYU law professor, tells Vox. “They were just fast-tracked to deportation."

The bill made it easier to deport and detain undocumented immigrants

Not only did IIRIRA allow immigrants convicted of certain crimes to be deported, it permitted undocumented immigrants apprehended within 100 miles of the border to be stripped of the ability to argue their case before a judge before getting deported. It also required the government to hold more immigrants in detention before deporting them, which makes it much more difficult to get legal representation, and decreased the discretion immigration judges and the executive branch had regarding removals. "Discretion was taken away from district directors and immigration judges almost entirely," Doris Meissner, former head of Immigration and Naturalization Service (now US Citizenship & Immigration Services), tells Vox. "And so deportations started to go up, people were deported who otherwise would not have been deported."

IIRIRA made it more difficult for undocumented immigrants to obtain legal status

As Vox explains, for much of the 20th century, certain undocumented immigrants were able to obtain legal status once they'd been in the US for a certain period of time. Before the law changed, in 1996, immigrants who had been in the US for at least seven years could obtain legal status if they showed it would cause them "extreme hardship" to be deported. IIRIRA changed this by limiting "cancellation of removal" to immigrants who were able to show that they had been in the US for at least ten years, and who had a US citizen (such as a child or spouse) who would suffer "exceptional and extremely unusual hardship," if the foreign national was removed from the US. This was a higher standard than the previous “extreme hardship” which only the foreign national themselves had to suffer. Moreover, the US would only grant cancellation of removal to 3,000 immigrants each year. IIRAA went further to also essentially eliminate one of the most common ways to gain citizenship. Vox explains:

Marrying a US citizen or permanent resident makes you eligible to apply for a green card. So does having an immediate relative who's a US citizen (like a child), as long as the citizen's over 18. These are true whether or not you already live in the US. And before IIRIRA, it was true regardless of whether or not you were legal to begin with. Starting after IIRIRA passed in 1996, though, an unauthorized immigrant couldn't directly apply for legal status — even if he had married a US citizen, or qualified for a green card through a relative. Immigrants were banished for at least three years if they'd lived in the US without papers for six months; the banishment lasted 10 years if the immigrant had lived in the US without papers for a year or more.

Applicants can apply for a waiver to the 3- and 10-year bars only if they leave the country first, making it too risky of a proposition for many. After IIRIRA, although deportations from the United States increased, the number of undocumented immigrants living in the US also increased dramatically, going from five million in 1996 to twelve million by 2006.

The 3- and 10-year bars, Vox says, has “caused millions of immigrants to remain unauthorized who'd otherwise be eligible for green cards or US citizenship by now.” According to Douglas Massey's estimate, without the 3- and 10-year bars, there would be 5.3 million fewer undocumented immigrants in the US today. "I don't think people fully appreciated what those laws had done," Nancy Morawetz tells Vox, referring to both IIRIRA and other 1996 immigration laws. In some ways, they're "still being sorted out today."