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Accrual of Unlawful Presence Significant Changes to Student Visa Holders' Maintenance of Status

USCIS's new policy regarding "unlawful presence" for foreign students (academic and vocational) and exchange visitors and their dependents are now in effect. This means that foreign students (F-1, J-1, M-1) will begin accruing unlawful presence on the day after the student violates the terms of his or status, such as fails to pursue the authorized course of study or practical training or engages in unauthorized employment.

Why is this such a big deal and the why are the consequences potentially enormous? The consequences can be enormous because immigration law provides that an individual who has accrued 180 days of "unlawful presence" is barred from re-entering the U.S. for 3 years; for those with 365 days or more of unlawful presence, the bar is 10 years.

You may ask, shouldn't the nonimmigrant know if she has violated the terms of her status. Not always. Most nonimmigrants are admitted to a specific date and are on notice that they will begin to accrue unlawful presence if they stay beyond that date. But F, J, and M visa holders are not admitted through a date certain, but rather, through the "duration" of their underlying educational or training programs, called "duration of status" or "D/S," a period of time that may and often does change after arrival. For this reason, USCIS (and the State Department) policy for the last 20 years has been that F, J, and M nonimmigrants begin to accrue unlawful presence the day after a DHS officer or immigration judge makes a finding that the person is out of status — in other words, the day after the person is put on notice that a violation of status has occurred.

Under the new policy, "unlawful presence" will begin the day after a status violation occurs, even if the foreign national has no idea that she has violated status. Worse, the policy will be applied retroactively; those who violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.

One can easily imagine the types of minor and technical violations that will render foreign students and scholars subject to the 3- and 10-year bars to admissibility. Here are a few:

An F-1 student is advised by his on-campus foreign student advisor that his online student record has been extended but it has not been. You've been accruing unlawful presence since the date that school administrator made the error.

USCIS determines more than 180 days after the student has commenced practical training employment that the work is somehow not sufficiently related to the student's degree. You've been accruing unlawful presence since you began this allegedly "unauthorized employment."

A student authorized to work 20 hours per week on campus as a graduate research assistant works 22 hours one week to complete a critical project before a lab deadline. You've been accruing unlawful presence since hour 21.

F, M, and J visa holders are well advised to check in with their Designated School Official (DSO) or program sponsor to make sure that they have not inadvertently violated status.

USCIS has also updated its STEM OPT reporting requirements. Students and employers must notify the DSO of any material changes in the OPT program by submitting a new Form I-983 at the earliest opportunity. Cessation of employment must be reported within five business days.

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