Unlawful Presence Guidance on Students and Exchange Visitors: Time is Running Out – Get Legal Now or Leave Before February 5, 2019

Unlawful Presence Guidance on Students and Exchange Visitors: Time is Running Out – Get Legal Now or Leave Before February 5, 2019

January 15, 2019

By: Bernard P. Wolfsdorf, Esq. and Robert J. Blanco, Esq.

On August 9, 2018, USCIS significantly changed its policy regarding the accrual of “unlawful presence” for F, M, or J nonimmigrant students.  Previously, unlawful presence would not begin until a determination was made by USCIS or an immigration judge.  Under the new policy, unlawful presence will begin the day after any violation.

Why is monitoring unlawful presence so important?  If a foreign national accrues 180 days of unlawful presence (even unknowingly) and departs the U.S., he or she triggers a 3-year bar to reentry.  If a foreign national accrues 365 days of unlawful presence and departs the U.S., he or she triggers a 10-year bar.

Any students who have failed to maintain status prior to August 9, 2018 began accruing unlawful presence as of that date, unless they were already accruing unlawful presence under the old policy. 

Therefore, students who are affected should calendar Tuesday, February 5, 2019 – which is 180 days after the new policy became effective.  To avoid triggering the 3-year bar, some students must either leave the U.S., or try to correct their status before then.  Depending on the facts of your case, you may have to leave BEFORE this date to avoid a bar to reentry.

Excerpts from the USCIS Policy Memorandum (PM-602-1060.1) below provide guidance on this new policy:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the person had already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the person violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered the person excluded, deported, or removed (whether or not the decision is appealed).

 

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the person excluded, deported, or removed (whether or not the decision is appealed).

 

Foreign students (F nonimmigrant) generally do not accrue unlawful presence in certain situations, including but not limited to:

  • During the period permitted under 8 CFR 214.2(f)(5)(i) (period of up to 30 days before the program start date listed on the F-1 nonimmigrant’s Form I-20);
  • While the F-1 nonimmigrant is pursuing a full course of study at an educational institution approved by DHS for attendance by foreign students, and any additional periods of authorized pre- or post-completion practical training, including authorized periods of unemployment under 8 CFR 214.2(f)(10)(ii)(E);
  • During a change in educational levels as outlined in 8 CFR 214.2(f)(5)(ii), provided the F-1 nonimmigrant transitions to the new educational level according to transfer procedures outlined in 8 CFR 214.2(f)(8);
  • While the F-1 nonimmigrant is in a cap gap period under 8 CFR 214.2(f)(5)(vi), that is, during an automatic extension of an F-1 nonimmigrant’s D/S and employment authorization as provided under 8 CFR 214.2(f)(5)(vi) for a beneficiary of an H-1B petition and request for a change of status that has been timely filed and states that the employment start date for the F-1 nonimmigrant is October 1 of the following fiscal year;
  • While the F-1 nonimmigrant’s application for post-completion Optional Practical Training (OPT) remains pending under 8 CFR 214.2(f)(10)(ii)(D);
  • While the F-1 nonimmigrant is pursuing a school transfer provided that he or she has maintained status as provided in 8 CFR 214.2(f)(8);
  • The period of time a timely-filed reinstatement application under 8 CFR 214.2(f)(16) is pending with USCIS;
  • The period of time an F-1 nonimmigrant was out of status if he or she applies for reinstatement under 8 CFR 214.2(f)(16), provided that the application is ultimately approved;
  • During annual vacation permitted under 8 CFR 214.2(f)(5)(iii) if the F-1 nonimmigrant is eligible and intends to register for the next term;
  • During any additional grace period as permitted under 8 CFR 214.2(f)(5)(iv) to prepare for departure:
    • 60 days following completion of a course of study and any authorized practical training;
    • 15 days if the designated school official (DSO) authorized the withdrawal from classes (SEVIS termination reason: authorized early withdrawal); or
    • No grace period if the F-1 nonimmigrant failed to maintain a full course of study without the approval of the DSO or otherwise failed to maintain status.
  • Emergent circumstances as outlined in 8 CFR 214.2(f)(5)(v), in which any or all of the requirements for on-campus or off-campus employment are suspended by a Federal Register notice and the student reduces his or her full course of study as a result of accepting employment based on the Federal Register notice; and
  • During a period of reduced course load, as authorized by the DSO under 8 CFR 214.2(f)(6)(H)(iii).

 

Foreign exchange visitors (J nonimmigrants) generally do not accrue unlawful presence in certain situations, including but not limited to:

  • The period of time annotated on Form DS-2019 as the approved program time plus any grace period, either before the program start date or after the conclusion of the program as outlined in 8 CFR 214.2(j)(1)(ii);
  • Any extension of program time annotated on Form DS-2019 as outlined in 8 CFR 214.2(j)(1)(iv);
  • While the J-1 nonimmigrant is in a cap gap period as outlined in 8 CFR 214.2(j)(1)(vi); and
  • The period of time a J-1 nonimmigrant was out of status, if he or she is granted reinstatement under 22 CFR 62.45.

 

Foreign vocational students (M nonimmigrants) generally do not accrue unlawful presence in certain situations, including but not limited to:

  • The period of admission as indicated on Form I-94, plus up to 30 days before the report or start date of the course of study listed on the Form I-20 as outlined in 8 CFR 214.2(m)(5);
  • Any authorized grace period as outlined in 8 CFR 214.2(m)(5);
  • During the time the M-1 nonimmigrant completes authorized practical training as outlined in 8 CFR 214.2(m)(14);
  • The period of time a timely-filed reinstatement application under 8 CFR 214.2(m)(16) is pending with USCIS; and,
  • The period of time an M-1 nonimmigrant was out of status if he or she applies for reinstatement under 8 CFR 214.2(m)(16), provided that the application is ultimately approved.

One option to avoid accruing unlawful presence is filing a reinstatement application.  Generally, an F-1 student does not accrue unlawful presence while a timely filed application for reinstatement is pending.  To be eligible, one must have filed the reinstatement application within 5 months of the status violation.  If the application for reinstatement is denied, unlawful presence will start (or restart) as of the date of denial.  Notably, a J-1 student will continue to accrue unlawful presence while a timely filed application for reinstatement is pending.

Students who have worked without permission or otherwise violated their status need to carefully evaluate their options now as time is running out.

To determine which immigration options are available, please contact your Wolfsdorf Rosenthal LLP immigration attorney by calling 1-800-VISALAW or email us at visalaw@wolfsdorf.com.

By | 2019-01-16T01:02:05+00:00 January 15th, 2019|Bernard Wolfsdorf, Blog, H-1B Visas, Litigation, Removal, and Deportation, Naturalization, Non-Immigrant Visa, Robert Blanco, students, Uncategorized, USCIS, Wolfsdorf Rosenthal|Comments Off on Unlawful Presence Guidance on Students and Exchange Visitors: Time is Running Out – Get Legal Now or Leave Before February 5, 2019

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