Comment on the Latest Proposal by DHS to “Establish a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, and Exchange Visitors”

Comment on the Latest Proposal by DHS to “Establish a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, and Exchange Visitors”
  • Refer to this regulation here.
  • We submit this for the public comment.

I believe the effort made by the agency to provide the details contained in this proposal deserves more than the overwhelming emotion-based comments I have read in the comment section.

The overarching concerns expressed by the agency center around a lack of control over its statutory responsibilities. They include but not limited to:

  1. Lack of visibility of activities of non-immigrants with the affected visa categories
  2. Abuse of the trust by DSOs and some university owners
  3. Number of the affected visa categories who are likely to overstay
  4. Threats to US national security

I will address these concerns by providing points that the agency should contemplate. Because I do not have verifiable data, I will rather raise questions that the agency may have enough data to answer.

To the first point that the agency lacks the visibility of activities of non-immigrants with the affected visa categories. I am not sure how a fixed duration of stay provides better visibility. I believe a student that will err does not need more than their fixed term to err unless the agency thinks it is a lesser risk to have an erring student spend only 2 or 4 years than granted an extended time to do those things that the agency is hoping to curb. Why does the agency need to have an application for an extension before it can vet any non-immigrant for compliance? I do not think it is too much to ask that intending visitors to the US give up some of their privacy rights. They are non-American citizens and should not expect the same immunity that Americans enjoy from the constitution of their country.

This measure removes the need to hope that every visitor will, in good faith, keep to the rules of engagement through the duration of their stay. The agency should also randomly select non-immigrants residents of over one year, two years, three years for vetting. The sample size should increase with the number of years they have spent. The vetting once agreed to upfront does not have to involve the subject of an investigation to avoid any psychological burden. Effective vetting could be achieved through cooperation among intergovernmental agencies. The IRS, Social Security Administration, Department of Public Safety, Financial Institutions can deliver a holistic view of the activities of any subject of investigation. Overall, fix the system, not punish the people for the inefficiency of the system. Estonia will be a poster child of how leveraging technology could help the agency fix the problems associated with visibility.

Abuse of trust by DSOs and some university owners is a problem that can be fixed with better accountability. A lot can go wrong in any system shrouded in secrecy. Perhaps an inter-higher eds accountability could help here. For example, include a requirement that all DSOs identifies in their process an approving authority outside their institution. It could be a DSO from another institution with similar consequences for both the DSOs and their institutions in case of an exposed fraud. Fix the system, do not punish the good ones while attempting to punish the evil ones. Financial controls in government can provide a good model for proofing the current process without adding any more burden on the students.

As regards the number of overstays, I am surprised the agency could track overstay but has no effective measure to limit or eliminate it. Again, an upfront agreement to being vetted as a non-immigrant resident allows the agency to collect information about anyone suspected to be elongating their stays unnecessarily. This measure also justifies the idea that the fraction of those randomly selected for vetting should increase with the number of years spent in the country. Also, does the agency consider the problem with using the percentage of overstay to determine countries that should have stricter restrictions? Accepting Chinese students at 2% overstay versus Burundi students at 50% is like accepting hundreds of thousand erring ones over a few hundred. The numbers do not add up.

A visitor who poses a threat to US national security does not necessarily need more than whatever fixed duration of their admission. The one who starts a process does not have to complete it. Hence, as long as visas are issued at all, limiting the duration of stay should not have a significant impact on the pre-meditated surreptitious activities of individuals or organizations. Increasing intelligence is the only way to keep a country safe. America is so big and diverse in its population that the threats from a foreigner could not outweigh those from its citizens and legitimate residents. Also, the need to single out specific countries is always a pointer to a weakness in the system the agency seeks to failure-proof. There are enough evil-inclined humans in every country on earth. Likewise, those who recruit people for their evil agenda can do so anywhere.

Overall, many variables can help the agency improve its proposal. A breakdown of the visa applicants by education level could show where the system needs attention. For instance, what is the fraction of erring Ph.D. students within the affected visa categories? What is the benefit-cost ratio of an umbrella policy that affects all Ph.D. prospects given the value yield of the upright ones versus the damage from the erring ones? Does nationality matter across all the levels of education? Are there other factors beyond nationality like country of residence of a visa applicant irrespective of their nationalities? Does the academic qualification with which a candidate received admission to the program for which they seek visas have any significance on their behaviour in the US? What about financial metrics? The agency should contemplate these questions at each level of education.

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