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USCIS Toughens “Unlawful Presence” Interpretation for F-1, M-1, and J-1 Students and Exchange Visitors, and their Dependents

17 May

On Friday, May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) published a new policy memorandum notifying its officers of a change in USCIS policy regarding the interpretation and calculation of unlawful presence for foreign nationals in the United States as F-1 Students, J-1 Exchange Visitors, or M-1 Vocational Students, as well as their dependents in F-2, J-2, and M-2 status except for those who are under 18 years old.  The new interpretation of what constitutes unlawful presence raises a status violation to the level of unlawful presence, triggering potentially severe consequences.  Subject to one month of public comment from May 11 to June 11, 2018, this new policy is anticipated to go into effect on August 9, 2018.

What is the Current Law on F-1, M-1, and J-1 Students and Exchange Visitors?

A foreign national who remains in the United States beyond the expiration date of his or her status may be subject to penalties for unauthorized presence in the U.S. as of April 1, 1997 and later.  Foreign nationals issued F-1 student visas, M-1 vocational student visas and J-1 exchange visitor visas, however, are not given a set expiration date.  They instead are permitted to remain in the U.S. through the duration of their status (D/S) as long as they comply with the terms of their program, such as attending classes or working in accordance with their J-1 visa.  They then have a set grace period to depart the U.S. after their program or work authorization ends unless they obtain some other type of immigration status.   These student and exchange visitors do not begin accruing unlawful presence until the day following a (1) denial of an immigrant benefit or (2) finding of a violation by the Department of Homeland Security or Immigration Judge.

Foreign nationals who depart the U.S. after accruing unlawful presence of more than 180 days but less than a year trigger a 3-year bar or penalty and those who depart the U.S. with a year or more of unlawful presence will trigger a 10-year bar upon their departure.  With these bars, foreign nationals are prohibited from receiving an immigration benefit unless eligible for a waiver and they receive a waiver for the unlawful presence.

What Exactly Changed?

After the effective date of August 9, 2018, foreign nationals in F, J, or M status will begin to accrue unlawful presence on the earliest date of:

  1. The day after ceasing to engage in the authorized activity or engaging in an unauthorized activity;
  2. The day after the grace period, if any, after completing the course of study, program, or authorized practical training;
  3. The day after the expiration of the Form I-94 Arrival/Departure Record; or,
  4. The day after an immigration judge or Board of Immigration Appeals (BIA), where applicable, ordered the foreign national excluded, deported, or removed regardless of whether the decision is appealed.

This new policy shift may make it more difficult for students and exchange visitors to comply with U.S. immigration laws and remain in the United States after completing their studies or exchange program when they otherwise would have qualified to change or adjust status.

What Should Employers Do?

It is more important than ever to keep careful track of the immigration documentation of J-1 Exchange Visitors, M-1 Practical Training, and F-1 Optional Practical Training (OPT) student employees to assist them in maintaining compliance and avoiding the accrual of unlawful presence.  Specifically, employers should confirm the foreign national has the following:

  1. Valid Form I-94 Arrival/Departure Records;
  2. Valid J-1, M-1, or F-1 visas if a student or exchange visitor;
  3. For F-1 Students
    • Copies of all pages of all Forms I-20;
    • Copy of all reports or six-month validation reports submitted to Designated Student Official (DSO) regarding legal name change, residential or mail address, employer name, employer address, and/or loss of employment;
    • For F-1 students with STEM OPT Extension status, copy of filed Form I-983 Training Plan for STEM OPT Students; and,
  4. For J-1 visa holders, copies of the front and back of every IAP-66 and/or DS-2019 ever issued.

Contact your Foster attorney today if you have any questions or concerns about this change in policy and its impact.