Change to USCIS Policy on Accrual of Unlawful Presence for F Students and J Exchange Visitors
USCIS announced a significant policy change relating to the accrual of “unlawful presence” for F, J, and M nonimmigrants. Effective August 9, 2018, any F-1 student or J-1 exchange visitor who violates immigration status, may immediately begin to accrue unlawful presence that could subject them to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B).
This policy shift does not change the regulations related to maintaining lawful F or J status. For instance, there is no change to the regulations related to academic registration, the limits on employment authorization, the importance of maintaining valid immigration documents, or your SEVIS reporting requirements. However, the consequences of violating status are now much higher.
Under the previous immigration policy, an F and J nonimmigrant admitted to the US for “D/S” (“duration of status”) who later violated the terms of their immigration status, would begin to accrue “unlawful presence” only after a formal finding of status violation was made by USCIS officer or an immigration judge. Under the new policy, an F or J nonimmigrant may begin to accrue unlawful presence the day after a status violation occurs, even without a formal finding by a government official or judge. Students and exchange visitors who accrue six months of unlawful presence may be barred from the US for a period of 3 years, and those who accrue one year or more of unlawful presence could be barred for 10 years. This new policy also applies to F-2 and J-2 dependent family members who are over the age of 18.
A status violation for a student or exchange visitor might include staying in the US beyond the expiration of their I-20 or DS-2019, staying in the US beyond the end of a “date-certain” I-94, dropping below the required full-time registration requirement, or working without appropriate employment authorization. Any event that leads to termination of a student or exchange visitor’s immigration record in the Student and Exchange Visitor Information System (SEVIS) might also be considered a status violation.
As a result of this policy change, it will be critical for F students and J exchange visitors to take immediate action to remedy any status violations as quickly as possible after they occur. This may involve departing the US and making a new entry to reestablish lawful immigration status. Status violations that are not quickly resolved may result in long-term bars from the US of up to 10 years. If you have questions about this policy change may affect your case, please contact your ISSO advisor directly, or request a referral to a knowledgeable immigration attorney.