On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) published a revised final policy memorandum with guidance relating to the accrual of unlawful presence for F and M nonimmigrant students, and J nonimmigrant exchange visitors. Pursuant to the revised guidance which became effective on August 9, 2018, students and exchange visitors in F, J, and M status will start accruing unlawful presence as of August 9, 2018 for failing to maintain their status, unless unlawful presence has already started accruing due to a prior finding of violation of status by a USCIS official or because an immigration judge had ordered the individual excluded, deported, or removed. This change in policy is particularly important to students and exchange visitors as they could now find themselves subject to the 3- or 10-year admission bars, which were generally not applicable to them under prior policy.
Under the INA, a person who is unlawfully present in the U.S. for a period of more than 180 days but less than one year, and voluntarily leaves the U.S. before removal proceedings is barred from readmission to the U.S. for 3 years from the date of departure or removal. Respectively, the 10- year bar applies when the unlawful presence period is one year or more. Unlawful presence, as noted in the INA, refers to being in the U.S. after the expiration of authorized stay or being in the U.S. without being admitted or paroled.
With the implementation of this new memo, USCIS is abandoning 20 years of consistent policy in favor of a retroactive approach to unlawful presence. In general, most students and exchange visitors are admitted for the “duration of status” to provide flexibility for the completion of academic programs, rather than a date certain on their I-94 admission records. Prior to this new unlawful presence policy, a student or exchange visitor would only begin to accrue unlawful presence after an immigration benefit application is filed and USCIS determines that the student or exchange visitor has violated his or her status, or an immigration judge ordered the student or exchange visitor excluded, deported, or removed. By changing the unlawful presence policy, students and exchange visitors now must be extra diligent to ensure that they maintain their status.
According to a Broadcast Message issued to all SEVIS users on August 10, 2018, students and exchange visitors will begin accruing unlawful presence on the earliest of the following:
- The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
- The day after completing the course of study or program, including any authorized practical training, plus any authorized grace period;
- The day after the Form I-94 expires; or
- The day after an immigration judge orders them excluded, deported or removed (whether or not the decision is appealed).
The first bullet point above presents the most alarming scenarios for students and exchange visitors due to the many elements for maintenance of F, J, and M status. For F and M students, the concept of maintaining a full course of study can be confusing. F and M students can also receive conflicting information from a registrar, an academic advisor, and the international student office. If a student forgets to check or follow up with the international student office in a timely fashion to ensure his or her actions are in accordance with the F-1 rules, he or she may not know if a single action or inaction would constitute a violation of status and accrual of unlawful presence. Specific requirements for maintenance of status apply to M-1 students and the various types of J-1 exchange visitors, but the effect of the new unlawful presence policy memorandum is no less severe.
Below are some examples of when a F-1 student could be deemed by USCIS to have failed to maintain status, and in turn, trigger the accrual of unlawful presence pursuant to the new policy guidance:
- Dropping below the required full course of study (12 semester/quarter hours for undergraduate programs) without authorization from a PDSO/DSO for a reduced course load. This can be due to failure to attend class(es) or dropping a course, or advice from an academic advisor to ultimately finish a program but without checking with the international student office.
- Taking more than one class or 3 credits of online courses toward the full course of study requirement (12 semester/quarter hours for undergraduate program).
- Taking online courses for ESL program.
- Working more than 20 hours during school year under CPT or OPT.
- Changing jobs to an employer who is not enrolled with E-Verify for STEM OPT.
- Failure to report to the international student office during the registration period.
- Failure to complete coursework on time for graduation and failure to obtain authorization from international student office to defer graduation and program completion date.
- Accepting more than 12 months of CPT and OPT at the same education level.
USCIS held a teleconference on this new policy memorandum on August 23, 2018. During the teleconference, USCIS clarified some concepts relating to the policy memorandum, the reinstatement process, and instances when an F-1 student does not accrue unlawful presence.
To put in practice, below are a few examples on how to calculate the aggregate unlawful presence time based on the policy memorandum:
Example 1: An F-1 student fails to maintain status for four months then files a reinstatement application. The period before the filing of the timely reinstatement application (less than five months out of status) is counted toward the 180-day unlawful presence time. However, the period of time while the reinstatement application is pending is tolled. If the reinstatement application is ultimately denied, the unlawful presence time will resume the day after the date of denial. Therefore, the student will have less than two months, or the remaining time before 180 days, to leave the U.S. before the period for the 3-year bar kicks in.
Example 2: An F-1 student fails to maintain status for seven months then files a reinstatement application. Because the student did not file a “timely” reinstatement, the period of time while the reinstatement application is pending is not tolled. The student is already subject to the three-year bar if he or she voluntarily leaves the U.S. While the reinstatement application is pending and the student leaves the U.S. after one year since falling out of status, he or she will be barred for returning to the United States for 10 years. If the student stays in the U.S. and the reinstatement application is ultimately denied, the student will have triggered both the 3-year and 10-year bars.
Example 3: Same facts as Example 2, however, the reinstatement application is ultimately approved. The unlawful presence or out of status time for which the reinstatement application is based will not accrue, and the student will be deemed in status for that entire period retroactively.
This change in USCIS policy regarding the accrual of unlawful presence for F, J, and M nonimmigrants not only has an immediate effect on students and exchange visitors and their dependents, but for those unaware of a violation of status, the resulting effect can be devastating and long lasting. Additionally, the avenues or ways from which USCIS will assess the students and exchange visitors’ unauthorized period of stay as noted in the policy memorandum and on their August 23, 2018 teleconference call are alarming. They note that USCIS officers should consider information in systems available to USCIS, information contained in the student or exchange visitor’s record, and information obtained through RFE or NOID. USCIS on its stakeholder call did not confirm or deny questions relating to information obtained on social media and other forums. In light of this new policy memorandum, practitioners should start reviewing closely their client’s immigration history if he or she is or has been in F, J, or M status to determine if there are any possible status violations that could have triggered the accrual of unlawful presence under the new policy guidance.
Source: AILA Doc. No. 18101939.
