USCIS Implements New Policy on Calculating ‘Unlawful Presence’ for F Students and J Exchange Visitors

On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) adopted a new policy regarding how “unlawful presence” in the United States is determined for individuals in F or J status.  OIS is providing this guidance to help students and exchange visitors understand the impact of this change.

What is unlawful presence?

Under immigration law, "unlawful presence" refers to the status of a person who is physically present in the United States without the proper authorization.  An individual may trigger unlawful presence in several ways, such as staying in the U.S. beyond the authorized period of stay, violating a condition of legal F or J status, or even entering the country without first going through inspection as documented by U.S. Customs and Border Protection (CBP).

What has changed under the policy for unlawful presence?

Prior to August 9, 2018, unlawful presence did not start accumulating until a government entity made a formal decision regarding a person’s F-1 or J-1 status, such as USCIS finding an individual violated their status when processing a benefit request, or an immigration judge issuing a deportation order.

Under the new policy, effective August 9, 2018, USCIS states that unlawful presence starts to accrue the day after an individual actually violates their status, however that may happen, and even if they were unaware of the violation.  No formal decision by a government entity is required for unlawful presence to accumulate.

How does one violate the terms of F or J status?

The most common ways F students and J exchange visitors violate their status include but are not limited to:

  • Working without advance employment authorization from the OIS or USCIS
  • Falling below full-time enrollment without advance authorization from the OIS
  • Staying in the U.S. beyond the permitted grace period at the end of a period of study or research
  • Failing to update home address after moving
  • Changing or adding a site of activity (J-1 students/scholars) without advance authorization from the OIS
  • Remaining in the US after withdrawing from a program of study, taking a leave of absence without OIS approval, or otherwise no longer pursuing a course of study or other authorized activity
  • Failing to report OPT employer information
  • Receiving public benefits funded by government agencies

In many cases, the individual may not realize that they have violated their status and are already accruing days of unlawful presence.  Problems may go undetected for years until there is a need to review an individual’s entire immigration history, long after the violation occurred.  Such a detailed review most commonly happens when the individual is applying to USCIS for a benefit, such as a change of status to H-1B or permanent resident status, or sometimes even OPT.  Problems can also be detected when applying for a new visa or upon inspection at a port of entry by CBP.

Why is this important?

If a nonimmigrant accrues a certain number of days of unlawful presence, immigration officials can bar them from returning to the U.S. in any status for a period of several years.  An accumulation of 180 days of unlawful presence could lead to a bar to reentry to the U.S. of three years; an accumulation of one year or more of unlawful presence could result in a 10-year bar to reentry to the U.S.

An individual’s eligibility to change to a different nonimmigrant status, to request permanent resident status, or to come to the U.S. at a future date could be affected if there has been any violation of status, regardless of its length.  It remains unclear exactly how this policy will be implemented, or how stringently, but violations could have an immediate and detrimental impact to your studies or research program.

What can I do?

Know and follow the requirements to maintain your legal F or J status.  You can find information on maintaining status on the OIS website pages listed in the next section.

If you feel that you may have violated your status and are accruing unlawful presence, do not panic or rely on information from untrained individuals; talk first to your international advisor in OIS.  Depending on the circumstances, the OIS advisor may refer you to an experienced immigration lawyer for further counsel.

Where you can find more information:

NAFSA: Association of International Educators

http://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/Accrual_of_Unlawful_Presence_and_F,_J,_and_M_Nonimmigrants/

 

 

USCIS:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

 

OIS:

F-1 students: http://ois.jhu.edu/Immigration_and_Visas/F1_Student/Maintaining_F1_Status/

J-1 students: http://ois.jhu.edu/Immigration_and_Visas/J1_Student/Maintaining_J1_StudentStatus/

J-1 scholars: http://ois.jhu.edu/Immigration_and_Visas/J1_Scholar/Maintaining_J1_Scholar_Status/

H-1B temporary workers: http://ois.jhu.edu/Immigration_and_Visas/H1B/Maintaining_H1B_Status/