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USCIS Changes Policy on Unlawful Presence


Effective August 9, 2018, USCIS made fundamental changes to its “ Unlawful Presence” policy. Under the new policy, USCIS will begin counting and tracking “Unlawful Presence” THE DAY AFTER an F, J or M nonimmigrant (including dependents) does anything intentionally or unintentionally to violate the terms of their status or to “lose” their legal status. This can trigger “bars” on returning to the U.S. in any manner for 3 years, ten years or permanently.

Note: Prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation.

The new policy clarifies that F, J, or M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018 will begin accruing “ unlawful presence ” on the earliest of:

  • The day after the F, J or M non-immigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in a n 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 being ordered excluded, deported, or removed

Consequences of Unlawful Presence:
  • Being unlawfully present in the U.S. can t rigger 3- or 10-year bans on entering the U.S. in the future.

  • Essentially, unlawful presence of more than 180 days but less than 365 days triggers a three-year ban on entering the U.S. while “ unlawful presence of one year or more triggers a ten-year ban.

Some "Date Mechanics" Examples regarding the August 9, 2018 effective date:
  • F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the individual had already started accruing unlawful presence under the prior policy.

  • F, M, and J nonimmigrants who had violated status prior to August 9, 2018 and are still in the United States out of status as of that date should pay close attention to the unlawful presence clock that starts ticking on August 9, 2018 under the revised USCIS policy180 days from Thursday, August 9, 2018 is Tuesday, February 5, 2019.

  • For example, let's say that an F-1 undergraduate student completed a Bachelor's degree on May 15, 2018, and remained in the United States beyond her 60-day grace period without taking steps to extend or change her status, or apply for optional practical training or reinstatement, and is still in the United States on August 9, 2018. In this case:

  • Although the student has been out of status since about July 15, 2018 (the day after her 60-day grace period), “unlawful presence” will begin to accrue on August 9, 2018 under the new policy, since the student’s status violation occurred before August 9, 2018.

    • If the student departs the United States within 180 days of August 9, 2018, the student will not be subject to the three-year bar, since the student will not have accumulated 180 days of unlawful presence.

    • Say the student departs the United States on March 10, 2019, though. In that case, the student will have accumulated more than 180 days of unlawful presence, and the student departure will trigger the three-year bar.

    • Say she departs the United States on August 10, 2019. In that case, she will have accumulated a year or more of unlawful presence, and her departure will trigger the ten-year bar under INA 212(a)(9)(B).

    • Reinstatement. Under the August 9, 2018 final guidance, “ unlawful presence” is not counted during the period that a timely-filed F, J or M reinstatement application is pending. To be considered "timely" for this purpose, the reinstatement application would have to be filed within 5 months of the status violation. If USCIS ultimately denies the application for reinstatement, the “ unlawful presence ” clock will start (or restart) as of the date USCIS denies the reinstatement. For example, a student who waits 4 months after a status infraction to file reinstatement would only have two more months following a denial of the reinstatement before coming up against 180 days and the 3-year bar.

Violations of Status include, but are not limited to:

  • Working off-campus without authorization;

  • Working for more than 20 hours per week on-campus during Fall or Spring semester;

  • Enrolling for less than full-time without authorization;

  • Failure to report OPT employment;

  • Working in a position that is not related to your field of study on OPT; and

  • Accrual of 90 days of unemployment while on OPT.

What can you do: It is not always clear whether situations pertaining to an F, J or M non-immigrants are violation of status or a permitted activity. Given the change to the way “unlawful presence” is counted, we:

  • Caution, F and J nonimmigrants at WVU to be very vigilant with respect to maintaining valid status and not engaging in what may be “ unauthorized activity”.

  • Please consult the ISSS and Office of Sponsored Students. We are available in helping you (including you r dependents) understand what you can and cannot do to maintain status.

  • Follow Deadlines – If ISSS gives you a deadline by which you need to do something follow it! IT could very well mean losing your legal status if you do not meet certain deadlines.

  • If you believe that you may have violated or lost your nonimmigrant F or J status, please reach out to ISSS IMMEDIATELY so that we can help you assess your situation and whether you qualify for reinstatement