The U.S. government made changes to its unlawful presence policy on August 9, 2018 which puts foreign students at risk of being barred from re-entering the U.S. for 3 or 10 years if they leave the country. Some immigration updates are relatively easy to explain to the general public. This one isn’t, but it’s critically important to students so please read carefully.
There are many rules and regulations that govern students’ status in the U.S. on F, M and J visas while they follow their course/s of study. Many of the rules aren’t at all obvious. If a student knowingly or even by mistake violates one of these rules, this could lead to a finding that the student has fallen out of legal status and is subject to the 3- or 10-year reentry bar provisions of the Immigration and Nationality Act 212(a)(9)(B). Individuals who are unlawfully present for more than 180 days but less than 1 year are generally barred from re-entering the U.S. for 3 years. Individuals who are unlawfully present for more than 1 year are generally barred for 10 years, and in some cases there’s a ‘permanent bar’ to re-entering.
Most students’ passports and I-94s are stamped with an expiration of “D/S” instead of a specific date. D/S stands for “Duration of Status.” As long as the student follows all the applicable regulations, s/he can remain in the U.S. as a student and can even move from one academic program to another legally without leaving the country. A minority of students have a specific expiration date on their I-94. If they remain past this date they start accruing unlawful presence immediately.
Before August 9, 2018 a finding of unlawful presence didn’t occur until a USCIS official or an immigration judge made a formal finding of a status violation which could take some time. In other words there was a difference between being out of status and being unlawfully present. That was the policy for the previous 20 years. Now, under the new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs. This means the student may not even be aware of violating status, but could be accruing unlawful presence which could lead to these 3- or 10-year bars. In addition to these bars, people subject to the 3-, 10-year, or permanent bars are usually also not eligible to apply for a visa, admission, or adjustment of status to permanent residence, i.e. to a green card, unless they are eligible for a waiver of inadmissibility or another form of relief. Waivers and other relief are a separate topic they’re not easy to get.
How does this work in practice? Let’s say a student violated status before August 9, 2018 by staying in the U.S. beyond the 60 day grace period after their course of study ends, and didn’t apply to extend or change to another lawful status, OPT or reinstatement. That student will start accruing unlawful presence as of August 9. If s/he leaves the U.S. within 180 days after that, there will be no 3- year bar. But if s/he is still in the U.S. after Feb. 5, 2019 (180 days) s/he is subject to the 3-year bar. After August 10, 2019 (1 year) s/he will be subject to the 10-year bar. If a student is in status on August 9 but violates status at a later time – say s/he drops courses without authorization on October 10, 2018, then s/he will start accruing unlawful presence the next day, or October 11.
Reinstatement. In some cases students can apply to USCIS for F-1 or M-1 reinstatement. Reinstatement applications are “timely filed” if made within 5 months of the status violation. If the student timely files the application, unlawful presence is not counted while the application is pending with the government. This is very important because it can take many months for a reinstatement application to be decided. If USCIS approves reinstatement, the student will again be in status and not subject to the bars and all previous time out of status will be forgiven or wiped out. If USCIS denies reinstatement, the unlawful presence clock will start (or restart) as of the date of the USCIS decision.
Unfortunately, it’s easy for a student to violate status unknowingly or due to a DSO (Designated School Official) error. Some violations are fairly obvious although even these can have many shades of gray: working without authorization, not pursuing a full course of study, transferring to another school without permission, or failing to complete a full course of study. But there are many not-so-obvious requirements such as reporting biographical information to a DSO every six months during a STEM OPT extension, or failing to report a material change in a STEM OPT training plan to the DSO by the student after having the employer sign a new training plan.
International students must keep in contact with their school’s DSOs to ensure they’re following all the regulations. If a violation occurred in the past, it’s possible the student will already be subject to lengthy bars by the time of discovering this, and these rules can also have a huge impact on future applications to work, remain in the U.S., or change to a different visa status. There have been other important changes to USCIS policies and practices since January 2017 that affect students. Individuals needing legal advice on the impact of these provisions should consult an experienced immigration attorney; it’s more important than ever.
