May 21, 2018
USCIS Makes Important Policy Announcements Regarding Student and Exchange Visitors
In the last two weeks, USCIS issued two important announcements regarding nonimmigrant student and exchange visitors. The first was issued on Friday, May 11, 2018 and marks a dramatic shift in the way that USCIS will calculate the accrual of unlawful presence for student and exchange visitors in F, J, and M status. Unlawful presence (ULP) is defined as presence after the expiration of a period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled. Student and exchange visitors entering in F, J and M status, as well as their dependent family members, are most often admitted with “duration of status” and their entry record, Form I-94 is marked as “D/S.” Previously, those who were granted duration of status were not considered to be accruing unlawful presence until either an Immigration Judge, or the Department of Homeland security had made a formal finding of a status violation. This is important, because if a nonimmigrant accrues more than 180 days of unlawful presence and departs the U.S., he or she will be barred from re-entering the U.S. for three years. Someone who accrues 365 days or more of unlawful presence and then departs the U.S. is barred from returning for 10 years. Also, in most cases, an applicant for adjustment of status to lawful permanent resident (a “green card” applicant) must be in lawful status at the time of his or her application.
Under the new policy memorandum, taking effect on August 9, 2018, USCIS will now instead find that an F, J, or M nonimmigrant begins to accrue unlawful presence immediately when any of the following occurs:
- 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 (including unauthorized work);
- 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 entry record expires; or
- The day after an immigration judge, or in certain cases, the Board of Immigration Appeals, orders them excluded, deported, or removed (whether or not the decision is appealed).
And so, for instance, an F-1 student who is approved for Optional Practical Training (OPT), but begins working for an employer before receiving an Employment Authorization Document (EAD), would be considered to have engaged in “unauthorized activity” and would begin accruing unlawful presence the day after working. Therefore, nonimmigrants in any of these three categories must use an abundance of caution, to ensure that they do not engage in activity that may jeopardize their status and lead to a calculation of unauthorized presence.
In another announcement on May 18, 2018 USCIS reminded F-1 students in a period of Optional Practical Training that transferring to a different school or beginning study at another education level will automatically terminate their OPT as well as their corresponding EAD. USCIS also stated that they are currently notified by Immigration and Customs Enforcement’s Student and Exchange Visitor Program when an F-1student’s OPT is terminated through one of these actions. USCIS will now enter the EAD termination date into their system upon notification by ICE, and will take steps to notify the F-1 student of the EAD termination.
Please contact our office if you have any questions regarding this information and the consequences it may have for you or your employees.