To tighten the rules for foreign students and reduce overstays, the Department of Homeland Security has expanded the definition of “unlawful presence” to include status violations, including minor, technical, and inadvertent violations. This change could result in F, J, and M students and foreign exchange visitors unexpectedly being barred from the United States for 3 or 10 years. The policy change is effective August 9, 2018, but will have retroactive implications. The impact may extend to family members, colleges and universities, employers, and communities nationwide, for years to come. To avoid a “gotcha” effect, employers and foreign employees who ever had student status or were on an exchange visitor program in the U.S. should carefully review immigration history when applying for any visa or immigration benefit.

Expanding the Definition of “Unlawful Presence” to Include Status Violation

Foreign students ranging from elementary though university studies have F-1 student status designation, and vocational students have M-1 designation. Foreign exchange visitors from nannies to foreign trainees to research fellows have J-1 status. Dependent family members have F-2, M-2 or J-2 designation.

Lawful presence for foreign nationals generally is tied to a period of stay authorized by a Homeland Security government agency, and usually tied to a date or timeframe. The new unlawful presence rule applies only to the foreign students and exchange program visitors and expands “unlawful presence” beyond overstays to include status violation. For most immigration status, a Homeland Security agency notifies the person of the specific date for the stay. However, for F, M, and J, they are authorized to remain in the United States until they complete their education or exchange visit. They are not given a specific date but are allowed to remain for the “duration of status” (D/S).

On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS), a Homeland Security agency, issued a Policy Memorandum, entitled “Accrual of Unlawful Presence and F, J and M Nonimmigrants.” The memo reverses the government’s position that has been in effect since 1997. Specifically, the agency had consistently interpreted “unlawful presence” to mean remaining after a specific date. For 20 years, the policy for foreign students has been that they might have slipped “out of status” due to a lapse, but were not “accruing unlawful presence,” and opportunities to rectify the lapse have existed.

Significantly, “unlawful presence” has consequences much more severe than a lapse of status, as it implicates the 3 and 10 year bars:

• A person who is found to have unlawful presence for 180 days beyond a specific date, and who then departs is subject to a 3-year bar from returning.
• A person who is found to have unlawful presence in the United States for one year beyond a specific date, and who then departs is subject to a 10-year bar from returning.

Because foreign students are not notified of any specific date by which they must depart, they never have been subject to a 3 or 10-year bar to admissibility, unless, on a specific date, USCIS or an Immigration Judge has found the individual to have violated status. Previously, the unlawful presence finding did not have retroactive effect. The clock started ticking on the date of the finding.

The USCIS policy change will result in some F, M, and J foreign students and foreign exchange program visitors being held inadmissible -- even if they never overstayed -- if they are deemed to have a “status violation,” even from many years ago. The policy could have immediate impact, without notice, and without an opportunity to challenge the decision.

Examples of Activities Triggering Status Violation and Unlawful Presence

Foreign students and exchange visitors have strict requirements for course of study, work, and other activities. Compliance is necessary. However, countless students and exchange visitors may have minor, technical, inadvertent, or unknown violations of status that will trigger the new “unlawful presence” definition:

• Inaccuracies in Student and Exchange Visitor Information System (SEVIS) records;
• Falling out of status due to illness or medical condition;
• Inadvertently starting an internship early;
• Volunteering in professor’s laboratory being interpreted as unauthorized “work”;
• Social media post showing activity that a Customs & Border Protection officer at an airport interprets to constitute a status violation;
• Student post-graduate work that is authorized by the school but that USCIS later decides it is not "integral" enough to the degree;
• Change of status to H-1B after lengthy USCIS processing and F-1 record terminated early, without notice to student until the visa is denied during a visit home;
• Failure to report an address change within 10 days.

Many alleged status violations are based on ambiguous or inconsistent interpretations of regulations or administrative policy. Under the new rule, the alleged violations might not be known until years later, after the foreign national has incurred a 3 or 10-year bar to admissibility and may be unable to re-enter the U.S. to continue study or employment or to join family. The impact on F-2 and J-2 spouses or children is even more egregious since they may have no way of knowing that the F-1 or J-1 violated status. Avoiding the inequity was among the reasons the agencies had maintained the policy requiring a date certain to trigger “unlawful presence” since 1997.

Limitations on Reinstatement Remedy

In the final rule, USCIS has stated that the students have a remedy after receiving notice of the status violation: to file an Application for Reinstatement. However, reinstatement is limited to those present in the United States, and is rarely approved. Persons barred or delayed from entering the United States cannot apply for reinstatement, and they are restricted from suing and have limited due process or options to challenge a finding of unlawful presence.

What This Means to Employers

Immigration law is increasingly complex. Administrative policy changes can have far-reaching implications and impose a level of unpredictability. This Unlawful Presence rule would have more consequences to employers than the travel ban or probably any immigration policy change by this Administration. Employers can minimize the negative impact by having qualified legal counsel review immigration history for current and future employees who previously had F, M or J status.