In the midst of continuing restrictions on international students, there’s some good news! On Feb. 6, 2020, a federal judge in North Carolina issued a permanent order in favor of international students facing “unlawful presence” issues that applies nationwide. The order, in strong wording, prevents the government’s Department of Homeland Security (DHS) from enforcing a policy memo they issued in 2018 that changed how days of “unlawful presence” are counted following a violation of F, M, or J nonimmigrant status. The memo’s bottom line impact was that even minor and unintentional violations of student status years before could lead to deportation and long bans (3 or 10 years) from the U.S.
The policy memo at issue changed the government’s 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. 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.
The prior policy – which is now in effect again – stipulated that a finding of unlawful presence didn’t occur until a USCIS official or an immigration judge made a formal finding of a status violation. 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. Under the policy memo – no longer in effect – USCIS planned to 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 (the original effective date of the memo) 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.
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 should still keep in contact with their school’s DSOs to ensure they’re following all the regulations. It’s also good practice for students to carefully save all documents, emails, etc. relating to their student status. It’s possible you’ll need them later, maybe even much later, when you apply to change or adjust status to a different immigrant or nonimmigrant category.
The court’s order applies across the nation. It is likely the government will appeal to a higher court.
