In a radical change from 20 years of immigration policy, USCIS issued final policy guidance on August 9, 2018, that a student who violates her F, J or M visa terms becomes “unlawfully present.”

“Unlawful presence” is a term in the regulations that has until now been distinct from a violation of status.  Before this memo, the universal rule was that a person becomes unlawfully present only by overstaying a date-certain departure deadline or by remaining after being determined to be out of status by USCIS or an immigration judge.

Because students and exchange visitors are usually admitted without a certain departure date, but for “duration of status” (“D/S” is often noted on the entry stamp), prior guidance was that a student would not accrue unlawful presence unless formally found to be out of status by USCIS or an immigration judge. This interpretation gave students more flexibility than other visa holders, which could be considered unfair in some circumstances.  However, the drastic nature of the remedy seems out of proportion to the problem.

Under the new guidance, a violation of status as a student or exchange visitor (F, J or M status) will result in the person being “unlawfully present.”  Such unlawful presence will commence:

• The day after she discontinues a course of study or lawful activity or engages in an unauthorized activity;
• The day after completing a course of study or program (including any authorized practical training plus any authorized grace period);
• The day after a date-certain I-94 expires; or
• The day after an immigration judge orders exclusion, removal or deportation, regardless of any appeal.

If such violation occurred before the effective date of the memo (August 9, 2018), unlawful presence will accrue from the effective date.

The consequences of unlawful presence

After 180 days of unlawful presence, a person is barred from immigrating (both in terms of obtaining permanent residence and entering the U.S.) for three years. Upon accruing one year of unlawful presence, a person is barred from immigrating or entering the U.S. for ten years.  These prohibitions are referred to as the “three- and ten-year bars.”

The bars are triggered upon leaving the U.S.  If triggered, a waiver is available to allow for entry on a temporary visa (if certain requirements are met) and another waiver is available to allow for immigration, but only in limited circumstances (the applicant is a spouse or child of a U.S. citizen or lawful permanent resident and the bar would result in “extreme hardship” to the U.S. citizen or permanent resident spouse or parent).

If a person is found not to have maintained F, J or M status, she would be required to leave to apply for a visa to gain a lawful status (i.e., a change of status would be denied), thus triggering the bar in almost all cases (qualifying as an “immediate relative” - spouse, child under 18 or parent of a U.S. citizen is an exception - although children under 18 do not accrue unlawful presence).

Consequences of the new policy

While in theory it is a good idea to hold foreign students to the terms of their status, in practice, student status is complex and often outside the control of the student.

Rather than making applications to USCIS to manage their status like most other temporary visa holders, students work with “designated school officials” (DSOs), who track their status in an on-line system called SEVIS, which is controlled by Immigration & Customs Enforcement (ICE) rather than USCIS.  However, USCIS will decide if the student has maintained status.

The SEVIS system - like any computer system - is not perfect. It interacts with another immigration tracking system called CLAIMS.  The two systems do not always interface well, sometimes causing erroneous termination of students’ records.

DSOs also can enter information incorrectly or fail to advise students that a certain activity will violate status. The rules are not intuitive.  Falling below the required number of course credits, failing to take appropriate action upon illness that prevents attendance, taking too many class credits online, working more than 20 hours per week in authorized employment when school is in session or other similar “technical” violations will now make the student “unlawfully present” unless remedied through the reinstatement process.

Reinstatement

If a student realizes that a violation has occurred, she may apply for reinstatement.  If reinstatement is sought within five months of the violation, USCIS will consider it a timely application and will put a hold on “unlawful presence” until the reinstatement application is decided.  If approved, the student typically will have cured the violation.  If denied, unlawful presence resumes on the day after the denial.

What to do?

We recommend that people in F, J or M status or who held one of those statuses in the past (and are not already U.S. permanent residents) examine their student history to refresh their memory about any past technical violations.  While it is impossible to list all technical violations, common scenarios include:

• Reducing course load below the required credit hours (usually 12, but in some situations the requirements vary);
• Taking too many online credit hours in a semester;
• Working more than 20 hours per week on-campus or Curricular Practical Training (CPT) or pre-completion Optional Practical Training (OPT);
• Exceeding allotted time for unemployment in OPT;
• Working in a job unrelated to degree studies;
• Working in OPT after a school transfer date (which cancels the OPT);
• Failing to extend an I-20.

If a student or former student is aware of a violation, it may be curable by exiting the U.S. and reentering before 180 days from the violation (or from the August 9, 2018 effective date if the violation occurred before that date).  The cut-off date for violations occurring before August 9, 2018 is February 5, 2019 (180 days from August 9, 2018). 

Because students may be unaware of a problem until the final stages of the immigration process, this policy is disturbing.  We expect litigation to be filed because it is a drastic change that amounts to re-writing a regulation and the Administrative Procedures Act was not followed.  However, unless the policy is enjoined, we must comply with it.