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New Students Policy: Status and Unlawful Presence

Posted on Thursday, June 21, 2018

Important Alert for Students: On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) issued an important policy memorandum that will greatly impact students and exchange visitors (F, J and M visas), as well as their dependents. This new policy makes it far more likely that students and exchange visitors will begin to accrue unlawful presence if they violate their status in any way.

The Previous Policy:
Under the previous policy, individuals in F, J, and M status did not begin to accrue unlawful presence until their I-94 expired or if the Department of Homeland Security (DHS) or an immigration judge made very specific findings that the individual violated their status. In practice, many F, J, and M visa holders could remain in the United States without accruing unlawful presence, even if they were not in lawful status. This was because most people in F, J or M status are admitted to the U.S. in "Durational Status," which means their I-94s had no expiration date. Therefore, unless they somehow came to the attention of DHS or an immigration judge, they would not begin to accrue unlawful presence even if they stopped attending school or worked without authorization.

The New Policy:
Under the new policy, individuals in F, J, or M status will begin to accrue unlawful presence in any of the following additional circumstances:

  • The day after they no longer pursue the course of study or the authorized activity
  • The day after they engage in an unauthorized activity (such as unauthorized employment)
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

In practice, this means that individuals will immediately begin accruing unlawful presence if they work without authorization, if they stop attending their program, or immediately upon the end of their grace period.

The Impact of the New Policy and Accruing Unlawful Presence:
Unlawful presence often limits an individual's ability to apply for a green card within the United States (adjustment of status) or to change status to a different type of visa. Furthermore, if someone departs the United States after accruing more than 180 days of unlawful presence, they may be barred from returning to the United States for three years (or ten years in the case of accruing one year or more of unlawful presence). Previously, individuals who were in F, J or M status often had the option of leaving the United States to pursue a visa or green card from their home consulate. However, this new policy may eliminate that possibility for many individuals who violate their status by more than 180 days.

Conclusion:
It is extremely important for individuals currently in F, J or M status to maintain their status (i.e. continue attending school, not engage in any employment without authorization, comply with all CPT or OPT terms, notify the school of changes to address, class schedule, transfer, employment, etc). If the student wishes to make any changes, they should first speak to their DSO and/or an immigration attorney to make sure it will not subject them to unlawful presence.

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