International Student Services

Warning: Government Changes to “Unlawful Presence” Enforcement

U.S. Citizenship and Immigration Services (USCIS) changed how their agency will calculate unlawful presence for F, J, and M nonimmigrants, including dependent family members, who fail to maintain their status in the United States. This USCIS policy memorandum explains the change, effective August 9, 2018.

This change will affect students who stay in the U.S. after their status ends or who violate their status by not following the F-1 or J-1 regulations. Sometimes students might not even realize the problem.

Examples of when unlawful presence could start counting:

  • I-20 expires before graduation and student forgets to request an I-20 extension
  • Failure to enroll in full-time classes without qualifying for a part-time exception and notifying ISS
  • Withdrawal from school, including Hardship Withdrawals, without notifying ISS first
  • Working off campus without ISS or government permission
  • Working on campus for more hours than allowed
  • OPT application denied after 60-day grace period ends
  • Staying in the U.S. after the 60-day grace period expires (for F-1 students)
  • Staying in the U.S. after the 30-day grace period expires (for J-1 students)

 

What is Unlawful Presence? What are the penalties?

From USCIS “Unlawful Presence and Bars to Admissibility

Unlawful presence is the period of time when you are in the United States . . . when you are not in a “period of stay authorized by the Secretary.”

The Immigration and Nationality Act INA 212(a)(9)(B) and (C) states:

“Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.”

The USCIS Policy Manual also says that

“A foreign national is barred from adjustment of status if the foreign national is in an unlawful immigration status on the date of filing the adjustment application.

[…]

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on a foreign national. In addition, a pending application or petition does not automatically afford protection against removal if the foreign national’s status expires after submission of the application. The foreign national may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved.“

What does this mean for students in F-1 and J-1 status?

It is vital that students understand their visa responsibilities and correctly follow the rules.

Review the F-1 and J-1 student laws as soon as possible: https://iss.washington.edu/regulations/

Your status is your responsibility.

If you have been following all of the F-1 and J-1 rules, your status should be fine. This change affects students in the U.S. with status violations or whose period of stay, including the grace period, ends.

Under the previous policy, unlawful presence generally did not accrue for students unless they received a denial notice from USCIS for an application or an order from an immigration judge.

Now unlawful presence starts accruing from the date of the unauthorized activity, regardless of notification from an immigration official, and continues until status is corrected or until the person leaves the United States.

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest 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, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), orders them excluded, deported, or removed (whether or not the decision is appealed).

Update – May 3, 2019

NAFSA, the national professional organization for international educators, has provided a brief summary of the U.S. District Court’s preliminary injunction of the policy memorandum:

The preliminary injunction temporarily halts enforcement of the 2018 policy while the underlying case is resolved. In the interim, USCIS will apply the prior policy guidance based on its unlawful presence memo issued on May 6, 2009, which was in effect prior to the August 2018 policy change. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.

Who to Contact For More Information?

NAFSA, the national professional organization for international educators, has a thorough online resource with more details and examples: Accrual of Unlawful Presence and F, J, and M Nonimmigrants

The ISS office can help you learn the F-1 and J-1 rules and help assess if there may have been a status violation.

Schedule a 30-minute Appointment to discuss your situation with your primary ISS adviser: visit iss.washington.edu and complete the Contact Us form to request the appointment. ISS advisers can advise about the immigration reinstatement process to regain valid status.

However, ISS advisers are not immigration attorneys. We do not have the legal expertise to advise about complex immigration situations, risks, and nuanced unlawful presence questions. We might recommend you consult an immigration attorney for more information and personalized advice.