In August 2018, the USCIS published a Policy Memorandum changing its policy on when F and M foreign students and J exchange visitors will start to accrue unlawful presence in the United States. Unlawful presence is the amount of time spent in the United States without authorized stay. Effective August 9, 2018, the accrual of unlawful presence will automatically start on the day after the F and M students and J exchange visitors fail to maintain their nonimmigrant status or engage in acts that violate their nonimmigrant status. In contrast to previous policy, a formal determination or prior notification of a violation of status or a failure to maintain status from USCIS is no longer required for the clock on unlawful presence to begin.
The new policy is a significant departure from the agency’s previous method for calculating the accrual of unlawful presence for these nonimmigrants and is designed to curb the number of visa overstays in the United States. Under previous USCIS policy, F and J nonimmigrants, who were admitted in duration of status, did not immediately accrue unlawful presence if they overstayed or engaged in activity that violated their status, such as unauthorized employment. The accrual of unlawful presence for these nonimmigrants would start on the day after a formal determination of a status violation had been made by USCIS during the adjudication of an application for immigration benefits, such as a change of status, or on the day after they had been ordered excluded, deported or removed by an immigration judge. F, M, and J nonimmigrants who were admitted until a specific end date began to accrue unlawful presence on the day after their I-94 expired, or on the day after a formal determination of a status violation or an order of exclusion, deportation or removal is issued, whichever was first.
How will the new policy be implemented?
The new policy will not be applied retroactively. Foreign students and exchange visitors who have failed to maintain valid nonimmigrant status before August 9, 2018 will automatically start to accrue unlawful presence based on that failure on August 9, 2018, unless they had already started accruing unlawful presence under a formal finding or the conditions of the previous USCIS policy noted above.
On or after August 9, 2018, F and M students and J exchange visitors who fail to maintain their status or who violate their status will start to accrue unlawful presence on 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 activity that violates their status;
The day after they have completed the course of study, including period (s) of OPT, STEM OPT, and the applicable authorized 30-day or 60-day grace period;
The day after the I-94 expires if admitted up to a specified date; or
The day after they have been ordered excluded, deported or removed by an immigration judge.
The new policy equally applies to the dependent spouse and children of the principal F and M students and J exchange visitors. As a dependent spouse or child’s nonimmigrant status is contingent upon the principal nonimmigrant’s status, the dependent spouse and children will concomitantly begin to accrue unlawful presence based on the principal nonimmigrant’s failure to maintain status or violation of status. The dependent spouse and children may also fail to maintain nonimmigrant status and/or violate their status on their own accord and will start to accrue unlawful presence on the same basis.
Foreign students who file a reinstatement application within five months of failing to maintain status at the time of filing will stop accruing unlawful presence and will be in period of authorized stay while the reinstatement request is pending. If the reinstatement is ultimately approved, no unlawful presence will have accrued for the period the foreign student was out of status. If the reinstatement is denied, unlawful presence will begin to accrue on the day after the denial.
In addition, foreign students who were granted OPT cap-gap extensions and whose H-1B change of status petitions remain pending after September 30th due to the temporary suspension of premium processing will not accrue unlawful presence and may remain in the United States in a period of authorized stay while the petition is pending. Please note however that foreign students who have been granted a cap gap extension, but are ineligible for a STEM OPT extension, must stop employment after September 30th, until the H-1B change of status petition is approved. If the change of status petition is denied, the foreign students will have a 60-day grace period from the date of denial to depart the United States. Individuals who fail to depart after the 60-day grace period will begin to accrue unlawful presence.
How does the new policy impact Employers of F, M, and J nonimmigrants?
Due to the harsh consequences resulting from the automatic accrual of unlawful presence, F, M, and J nonimmigrants and their employers must remain diligent in maintaining lawful immigration status and proper work authorization, and/or meeting OPT compliance requirements in accordance with pertinent immigration law and USCIS policies. Should employers or employees have questions about whether certain activities may violate F, M, or J nonimmigrant status, please contact our office.