F-1 and J-1 Visa Holders: Beware the New Unlawful Presence Memo!

In August 2018, USCIS implemented a new policy memo regarding the accrual of unlawful presence for F, J, and M nonimmigrants.
Before we delve into what this means, let’s take a look at the difference between out of status and unlawful presence. Both of these terms are legal terms of art, with specific meanings.

Out of status: A foreign national is out of status when they have violated the terms of their visa classification, such that the status is no longer valid. For example if an H-1B visa holder works without authorization for an employer other than their H-1B petitioner or if an F-1 student fails to maintain a full course of study. If a person is out of status, that person cannot then change status to another visa classification and cannot extend their status, because they no longer have valid status.

Unlawful presence: Unlawful presence refers to the situation when a person is no longer authorized to be physically present in the United States. It may refer to a person who entered the U.S. without proper documentation (crossing the border without inspection, for example), or it can refer to a person who entered the U.S. with a valid visa, but who has overstayed their I-94 (the document that tells a person what their nonimmigrant status is (which type of visa classification they entered on) and the date until which they can stay in the US). If a person’s I-94 expires on 1/1/2020, for example, and that person remains in the U.S. beyond that date, without having taken any action to change, extend, or adjust their status, that person is likely accruing unlawful presence.

If a person accrues more than 180 days but less than one year of unlawful presence, and if that person leaves the US, there is a 3 year bar to re-entering the US. If a person has accrued more than one year of unlawful presence and leaves the US, there is a 10 year bar to re-entering the US. In general, a person who is unlawfully present is also out of status. However, a person who is out of status is not necessarily accruing unlawful presence.

In general, when a person enters the U.S. on an F-1 student visa, or a J-1 visa, their I-94 does not have an expiration date. Instead, it will say D/S, which stands for duration of status. Previously, if USCIS or an Immigration Judge found that an F-1 or J visa holder had violated their status, that foreign national would start accruing unlawful presence the day after that formal finding was made, either in a denial decision from USCIS (denying a benefit that the person had applied for), or in an Immigration Judge’s decision.

The new policy, now in effect, says that an F, J, or M nonimmigrant begins to accrue unlawful presence due to a failure to maintain status as of the day that the activity (which caused the violation of status) began. For example, if an F-1 student begins to work without authorization on October 2, 2018 and USCIS denies a change of status application on April 4, 2019 for working without authorization, the student has been out of status and begins accruing unlawful presence as of October 2, 2018 (not as of April 5, 2019, as the policy would have been before). That is bad news for the student – not only can they not change or extend status now (because they have violated their status), but if/when they leave the US, they are subject to the 3 year bar to re-entering the U.S. because more than 180 days have passed since the start of the unauthorized employment.

The way to avoid these problems, of course, is to maintain status. However, sometimes a person may not know that they are failing to maintain status, or they may be doing an activity that they think is permissible, but that USCIS later determines is not permissible.

One thing that USCIS is focusing on now is the use of CPT (curricular practical training). There are some instances in which CPT is appropriate (when a course truly requires an internship, externship, or other hands-on work experience). However, there are some instances in which CPT is used to keep working when OPT is not available, a person has tried unsuccessfully for an H-1B, etc. In some cases the school has authorized the CPT so the student believes this is an authorized activity. However, USCIS may issue a request for evidence (RFE) asking for additional documentation to show that the CPT was actually appropriate. If USCIS opines that this was a mis-use of CPT (CPT should not have been issued), USCIS can find that the student violated their status as of the first day that CPT started. Unlawful presence, per this policy, would begin accruing as of that date as well. This can cause devastating and long-lasting consequences for the foreign national.

This is one of the most complex areas of U.S. immigration law, so if you think you are out of status or are accruing unlawful presence, you should consult with a qualified immigration attorney. This change and other changes in the current administration make U.S. immigration law even more complex and risk-ridden than before. We are committed to strategizing with clients to come up with the most appropriate options for them, and helping them navigate the process for both family-based and employment-based immigration processes. Please contact our office today to see how we may be able to assist you! We are immigration lawyers located in Richmond, VA but we serve clients throughout the U.S. and around the world. Please call us at 804-396-3412 or email us at info@sumnerimmigration.com, or set an appointment here. We look forward to hearing from you!