Major Change for F, M and J nonimmigrants: USCIS Changing Policy on Accrual of Unlawful Presence
Effective August 9, 2018, USCIS will change the way it calculates unlawful presence for individuals in the U.S. as F-1 students, J-1 exchange visitors, and M-1 vocational students and their families.
Who Does This Impact?
- F-1 International Students
- M-1 Vocational Students
- J-1 Exchange Visitors in all categories, from au pairs to post-doctoral research scholars
- F-2, M-2 and J-2 dependent spouses and children 18 to 21 years of age. Dependents may accrue unlawful presence based on the principal’s violation of status, or their own violation.
The above visa classifications are generally admitted for “Duration of Status.” That is, the I-94 admission document reflects the authorized period of stay as “D/S,” rather than reflecting a specific date. This indicates that the F/M/J visa holder has been admitted for the duration of the underlying program, as reflected on the I-20 or DS-2019, plus any regulatory grace period.
A “violation of status” occurs if any nonimmigrant fails to maintain a term or condition of their status. For example, a student who drops below the required credits in a semester, or a student who takes a part-time job at a local restaurant without work authorization, would be in violation of status. Violation of status carries certain negative consequences, such as not permitting the individual to change or adjust their status from within the U.S. Also, if a person in violation of status is encountered by immigration enforcement, they may be placed in removal proceedings. However, status violations can often be cured by new filings with full disclosure of the violation and/or a new entry to the U.S. with proper documentation.
For those admitted for duration of status, current USCIS policy is that “unlawful presence” occurs if the Immigration Service makes a formal finding of a status violation (for example, when adjudicating a request for a different application). This is different than for those in other visa categories, such as an H-1B. Those individuals are admitted to a specific date on their I-94, in which case unlawful presence begins to accrue the day after the most recently-issued I-94 expires.
“Unlawful presence” is more serious than a “violation of status.”
- If a person is unlawfully present in the U.S. for even one day, any valid nonimmigrant visa stamp is voided by operation of law, and all future nonimmigrant visas must be issued in the home country.
- If a person accrues more than 180 days of unlawful presence and departs the U.S., they are barred from re-entry for 3 years, unless they obtain a waiver
- If a person accrues one year or more of unlawful presence and departs the U.S., they are barred from re-entry for 10 y ears, unless they obtain a waiver
USCIS is changing the way they calculate unlawful presence for F, J and M nonimmigrants, by essentially defining unlawful presence as commencing at the time the status violation occurs.
- For those who failed to maintain status before August 9, 2018, the unlawful presence will begin to accrue on August 9. Therefore, the new policy is being applied retroactively to actions which occurred prior to the effective date of August 9. Note that we are already seeing Requests for Evidence issued in other visa classifications, such as H-1B cases, asking for extensive documentation that a student maintained his or her F-1 status for years prior to the filing.
- For status violations which occur on or after August 9, 2018, the F, M or J holder will start accruing unlawful presence on the earliest of the following:
a. 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;
b. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
c. The day after the I-94 expires; or
d. The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).
What Actions Should F, M and J Visa Holders Take?
How USCIS will define “unauthorized activity” is unclear. Certainly, dropping below the required course of study without approval or working without authorization would be deemed unauthorized activity. However, in addition, this is a good time to do the following:
- Ensure any required notifications to SEVIS have been made
- Review all of the notice and reporting requirements for STEM OPT work authorization, to ensure a required action is not inadvertently missed
Ensure there is no gap in status, notification, or documentation when transferring between programs or changing course of study