Earlier this month, United States Citizenship and Immigration Services (USCIS) made two changes affecting foreign students – (1) calculating unlawful presence for students in the U.S. and (2) third-party placements for STEM OPT students.

Calculating Unlawful Presence

“Unlawful presence” in the U.S. is defined as being present in the U.S. after the expiration of a period of stay or any presence without being admitted or paroled into the U.S. However, different rules govern what counts as “unlawful presence.” Recently, USCIS updated its policy on how unlawful presence is calculated for individuals in F (student), J (exchange visitor), and M (vocational student) status. Generally, an individual who “was unlawfully present in the United States for a period of more than 180 days but less than 365 days” may be barred from re-entry for three years; and if an individual has overstayed for more than 365 days, then a ten year bar to re-entry applies. See INA 212(a)(9). In a Policy Memorandum dated May 10, 2018, USCIS set out new rules for calculating unlawful presence for individuals in F, J, and M status. Under the former rule, a student in the U.S. would begin to accrue unlawful presence only after USCIS or an immigration judge made a formal finding of a violation of status, whichever came first. However, under the new rule effective August 9, 2018, unlawful presence is calculated as follows:

F, J, or M individuals who failed to maintain their status before August 9, 2018 will start accruing unlawful presence on August 9, 2018, unless such individual has already started accruing unlawful presence on the earliest of any of the following:

• The day after Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after their I-94 expired, if the individual was admitted for a date certain (versus Duration of Status (D/S)); or
• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

F, J, or M individuals will begin to accrue unlawful presence for a failure to maintain status on or after August 9, 2018 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, if the individual was admitted for a date certain (versus D/S); or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

USCIS seeks to implement this updated policy to lower overstay rates for students and exchange visitors. According to the FY 2016 Entry/Exit Overstay Report published by DHS, “the total overstay rate is 6.19 percent for the F visa category, 11.60 percent for the M visa category, and 3.80 percent for the J visa category.” In FY 2016, DHS calculated nearly 1.5 million students and exchange visitors who were expected to change status or depart the U.S.

Restricting Third-Party Placement for STEM OPT

The second policy change is with regard to third-party placements for STEM OPT students. F-1 students may engage in a twelve-month optional practical training (OPT) after completing their studies. Students who receive a science, technology, engineering, or mathematics (STEM) degrees may apply for a twenty-four month extension to their OPT. So far, no regulations or policy memoranda specifically prohibit STEM OPT students from being placed at third-party sites. However, USCIS updated its website to prohibit third-party placements – “a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).” The website requires that training take place on-site exclusively. USCIS’ stated rationale includes the ability of Immigration and Customs Enforcement, the enforcement arm of the DHS, to conduct site-visits to ensure OPT compliance.

It is expected that USCIS will issue a policy memorandum addressing this issue in the near future, as the enforceability of publishing material on the website could be challenged. Therefore, students and employers are well-advised to consult immigration counsel in considering a third-party placement and the associated risks in light of these developments.