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New Unlawful Presence Rule for Students

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018

On May 11, 2018, USCIS announced a new rule for determining the days of unlawful presence for international students holding F, J, and M visa. This rule is scheduled to take effect on August 9, 2018. The new rule can produce harsh consequences for international students. 

What are consequences of unlawful presence?

Unlawful presence in the United States has harsh consequences:

  • The accumulation of any period of unlawful presence automatically results in visa cancellation and the student will be required to reapply for a new visa at the U.S. consulate in his or her home country.
  • The accumulation of more than 180 days but less than a year of unlawful presence, during a single visit, will result in inadmissibility to the United States for a period of three (3) years.
  • The accumulation of one (1) year or more of unlawful presence, during a single visit, will result in inadmissibility to the United States for a period of ten (10) years.

Note that the 3- and 10-year bars are triggered upon departure from the United States.

For further details about consequences of accumulating days of unlawful presence, see Consequences of Overstaying

How did USCIS determine students' unlawful presence before?

Under the old rules (i.e., rules in effect prior to August 9, 2018), international students started accumulating unlawful presence on the earliest of the following dates:

  • The day after DHS made a formal finding that the student had violated his or her status;
  • The day after the expiration date, if any, shown on the student's I-94; or
  • The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) ordered the student removed, deported, or excluded, regardless of whether the student appeals.

This rule meant that an international student, with permission to stay marked as “D/S” (duration of status) on his or her I-94, would not have started to accumulate days of unlawful presence until USCIS formally found the student to be in violation of his or her status.

How would USCIS determine unlawful presence under the new rule?

The new rule (i.e., rule that took effect on August 9, 2018) prescribes that international students on F, J, and M visa start accumulating unlawful presence on the earliest of the following dates:

  • The day after the student no longer pursues the course of study or the authorized activity, or the day after the student engages in an unauthorized activity;
  • The day after the student completes his or her course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the expiration date, if any, shown on I-94; or
  • The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) order them removed, deported, or excluded, regardless of whether the student appeals.

What are consequences of the new USCIS rule?

International students in the United States live here for a long period of time and go through many life events during the time they are here. While they may try their best to comply with each and every rule, it is possible that over the years they may make some technical errors (even a minor one for a brief period of time) along the way, which may not be obvious to them at all. At the same time, they may not have any communications with the USCIS or the United States Department of State for years.

The implication of the new rule is that when, years later, the student has an encounter with the USCIS (e.g., asking for permission to engage in OPT or becoming the beneficiary of an employment-based petition) suddenly the USCIS may declare a status violation has occurred years ago. Thereafter, the student's visa is automatically voided, and, in the worst case, the student is placed in removal proceeding and is declared inadmissible for a period of years (due to accumulated days of unlawful presence).

Would the USCIS apply the new rule retroactively?

No. USCIS specifically states that the new rule applies students in “F, J, or M status who fail to maintain their status on or after Aug. 9, 2018.”  However, students, who had already started to accumulate days of unlawful presence under the old rule, will continue that accumulation.

What are the different ways a student may be considered in violation of status?

There are a variety of ways that a student may be deemed in violation of status.  Some of those are listed below:

  • Allowing the I-20 to expire
  • Failing to register for semesters or quarters of the academic year
  • Withdrawing from classes without authorization
  • Dropping courses below the required full-time course of study
  • Expulsion from school
  • Suspension from school
  • Failing to attend school altogether
  • Accepting unauthorized employment
  • Working beyond the terms of employment authorization
     
    • Note. Remember, you are allowed to work full time, only when the school is not in session-- not when your finals are over.
  • Engaging in optional practical training (OPT) without authorization
  • Failing to report OPT employment
  • Failing to report employer change while in OPT
  • Accruing 90 days of unemployment while on OPT
  • Accruing 150 days of unemployment while on STEM OPT
  • Failing to leave the United States when required

See Grace Period.

What should I do to protect myself?

If you are an international student, the most important things to do is to keep in touch with your international student advisor at the school, frequently review and ensure the accuracy of your SEVIS record, request changes to SEVIS record if one is needed, and do not allow your I-20 to expire.

If you are authorized to work in the United States, do not work beyond the terms of your authorization. If your authorization expires on a particular day and some task is not completed by then, do not work an extra minute to complete the task (even if you decline wages for that extra minute), regardless of how prudent that may be.  As a matter of courtesy, you may send a letter to the employer and explain your situation and the reason for your action.

If you have authorization to work off-campus, you may work part-time when the school is in session and full time when the school is not in session.  Remember that your permission to work full time is contingent on school not being in session–- NOT your finals being over. Use the school's academic calendar, not your finals schedule, to determine when you can work full time.

Remember that allegations of status violation may come years after the fact.  Keep the following records:

  • All documents that you exchange with USCIS, U.S. Department of State, or any other governmental agencies
  • All versions of your I-20, and document relating to your SEVIS record, including copies of your SEVIS record after any change made to it.
  • All documents relating to your registration for classes, including, but not limited to, documents relating to adding courses, dropping courses, withdrawing from courses, withdrawing from a semester, and receipts for payment of tuition
  • All end-of-session grade reports and a copy of your full transcript obtained at the end of each semester, quarter, or session
  • Medical records for matters that have had any impact on your registration or school attendance
  • If you work, copies of your timesheets and all payroll checks or stubs (or copies of electronic deposits made by the employer)
  • School's academic calendar for every semester, quarter, or session that you attend
  • All of your travel tickets, receipts, itineraries, and boarding passes

In keeping records, observe the following principles:

  • If a document require signature, keep a copy of the signed document as you have submitted it.
  • If you wish to keep hard copy documents electronically, scan them in high resolution.  Do not take pictures with your phone.
  • Some documents are only available electronically. You can save them electronically by printing them into PDF's, or you can take screen shots and convert those to PDF.
  • Name the electronic files in a way that would reflect the date of their creation, like “2018-05-14 Semester Grade Report.pdf”
  • Keep these documents in an organized fashion, perhaps a folder with properly named subfolders.
  • Backup your files. When, and if needed, you cannot afford not to have these documents and you must be able to locate them quickly.

Related Topics:

Consequences of Overstaying

Grace Period

 

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