Things to Consider in Light of USCIS Memorandum Affecting Accrual of Unlawful Presence for Nonimmigrant F and M Students and J Exchange Visitors

As covered in a previous article, United States Citizenship and Immigration Services (USCIS) has issued a memo revising how unlawful presence is initiated and accrued for F and M nonimmigrant students and J nonimmigrant exchange visitors. Put in effect beginning August 9th of 2018, it entails severe consequences and pitfalls for any who are not fully aware of its contents and complexities - perhaps even for those whom are well-versed and stay up to date in immigration law.

Prior to the recently implemented memorandum, there were only two categorical instances in which nonimmigrant students or exchange visitors would commence any accrual of unlawful presence. One could be that an immigration benefit application was filed and USCIS determined that the student or exchange visitor had violated his or her status. In the other, it would be because an immigration judge had ordered the student or exchange visitor excluded, deported, or removed. However, the new policy introduces a slew of additional instances that all affected parties must be wary of.

The purpose of the following will be to educate those who are interested in or may be affected by such policy changes as to the implications of the changes to the accrual of unlawful presence for nonimmigrant exchange visitors and students. It is absolutely essential that all affected parties be cautious and informed concerning the potential consequences of falling prey to the new accrual methodology’s impacts, especially considering that after 180 days or one year of unlawful presence, individuals will respectively be made subject to three-year and ten-year bars on admission to the U.S.

The New Policy of Unlawful Presence Accrual for F and M Students and J Exchange Visitors

As per USCIS new policy memorandum, nonimmigrant students and exchange visitors begin accruing unlawful presence upon the date of any 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. This includes any authorized practical training as well as any authorized grace period.

• The day after the Form I-94 expires.

• The day after an immigration judge orders them excluded, deported or removed. This applies regardless of whether or not the decision was appealed.

Implications of USCIS’s Revisions on Nonimmigrant Students and Exchange Visitors

The first scenario specified above implies perhaps the most perilous of potential consequences for nonimmigrants of F, M, and J status.

For F-1 students, ensuring that a full course of study (12 semester/quarter hours for undergraduate programs) can be a complicated undertaking. Additional hazards include possibly confusing information issued from a registrar, academic adviser, or even the international student office. Furthermore, if a student forgets to check or follow up in timely order with the international student office for ensuring that taken actions are in accordance with rules connected to the F-1 status, it may be unbeknownst to the student that one of those actions or possibly an inaction actually constituted a violation of status, thus triggering unlawful presence that is now accruing to the student’s detriment and peril. While status maintenance requirements are more specific for M-1 students and J-1 exchange visitors, the potential consequences of such missteps are no less grave.

More Examples that could Affect F-1 Students

Within the following list are further actions that could prompt USCIS to determine an F-1 student to have veered out of status, thereby commencing the decided accrual of unlawful presence:

• 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.

Personally Determining Possible Accrual of Unlawful Presence

Making sense of the newly imposed revisions and discerning one’s own case of potentially accruing unlawful presence can be a daunting task, even for experts in the profession. Below are some examples of a few of the trickier scenarios that will hopefully illuminate such tasks and those like them:

1. An F-1 student fails to maintain status for four months before filing an application for reinstatement. 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 not. 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 three-year bar kicks in.

2. An F-1 student fails to maintain status for seven months then files a reinstatement application. Because the student did not file for reinstatement before the passing of 180 days, the period of time while the reinstatement application is pending is still counted in determining the unlawful presence accrued. Furthermore, the student is already subject to the three-year bar if he or she voluntarily leaves the U.S. If while the reinstatement application is pending the student leaves the U.S. after one year since since his or her falling out of status, he or she will be barred for returning to the United States for ten years. If the student stays in the U.S. and the reinstatement application is ultimately denied, the student will have triggered both the three-year and ten-year bars.

   • Same facts as above. 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.

Further Information (and Questions) on How USCIS will Determine the Commencement of Unlawful Presence Accrual

USCIS has indicated that its officers are to consider all information in the systems available to the agency, including information contained in the nonimmigrant student or exchange visitor's record and that obtained through requests for evidence (RFEs) or notices of intent to deny (NOIDs). USCIS would not confirm or deny questions relating to information obtained on social media and other forums.

In reflecting on the new policy memo and its implications, all affected parties must inspect histories closely for potential status violations and be all the more diligent in avoiding any initiation of unlawful presence going forward. All affected - especially F, M, and J nonimmigrants - must practice the utmost of caution and seek all information and counsel that is accessible.

As is always the case regarding inquiries and requests for assistance, never hesitate to contact us.