Unlawful Presence

USCIS has made significant changes to its policy regarding F or J nonimmigrants who violate their status. Under the new policy, USCIS will start counting days of unlawful presence the day after an F or J status violation occurs (unless the student applies for reinstatement). In the past, unlawful presence did not accrue until a USCIS official or immigration judge made a formal finding of a status violation.

What do these updates mean for me a F-1 or J-1 student?

Update: On February 6, 2020 the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status.  For more, please see NAFSA's website here: https://www.nafsa.org/professional-resources/browse-by-interest/accrual-unlawful-presence-and-f-j-and-m-nonimmigrants


F-1 and J-1 students should always take care to be in accordance with all immigration rules and regulations. Now is a good time to again reinforce the need for students to be in full compliance with regulations, including but not limited to: being a full-time registered student, not engaging in unauthorized employment, and only engaging in employment which fully adheres to all the regulatory requirements. In cases of CPT, OPT, and STEM OPT, we urge students who feel their situation may be in a “grey area” to exercise caution. It is important to document how you are adhering to all of the regulatory requirements (for example: carefully document why the CPT is academically required and how your job duties directly relate to your major and/or research; only pursue employment on OPT that directly relates to your major; on STEM OPT, only accept positions that fully meet all regulatory requirements (see third party placement guidance below).

To read the Policy Memorandum on “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” please click here. To read NAFSA’s post about this change, please click here. 

Accruing Unlawful Presence:

The text below is taken from USCIS:

“Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

  • The day after 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; 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).
Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence 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; 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).”

What are the consequences of unlawful presence?

Individuals who accrue more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three or 10 year bars to admission. If more than a year is accrued across an individual’s lifetime, they could be ruled permanently inadmissible to the U.S.

It could also have consequences for the adjudication of benefits (such as changes of status or employment authorizations).

What we don’t know:

As NAFSA points out, we do not yet know how this guidance will play out in a number of agencies: “It is not yet clear how this USCIS guidance will impact the policies of other agencies, for example:

  • ICE, in its enforcement actions
  • SEVP and DOS-EVP, regarding a student or exchange visitor's SEVIS record
  • CBP, regarding admission to the United States in nonimmigrant status
  • DOS-Consular Affairs, regarding eligibility for a nonimmigrant visa” 

What can a F-1 or J-1 student do to protect themselves?

To avoid violating status, ISSS strongly recommends that students.
  • Understand the rules and regulations.  Ask ISSS if there is something you don't understand.  You can find information on the rules and regulations throughout this website and on ISSS forms.
  • Read all emails sent to you by ISSS.  We communicate important immigration information through email and our weekly newsletter.
  • Submit all required information and reports, and adhere to reporting deadlines.  You can review reporting requirements here.
  • Comply with all federal and state laws
  • Comply with all University at Albany academic and conduct policies

 

Disclaimer:
The information contained in this web site/form is provided as a service to international students, faculty and staff at the University at Albany. It does not constitute legal advice. We try to provide useful information, but we make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to this web site or any associated site or form. Neither the University at Albany nor ISSS is responsible for any errors or omissions contained in this website, or for the results obtained from the use of this information. Nothing provided herein should be used as a substitute for the advice of competent legal counsel; students may wish to consult an immigration attorney on the specifics of their case as needed.