Earlier this spring, U.S. Citizenship and Immigration Services announced a significant policy change that will impact foreign nationals studying in the United States in F status (student), J status (exchange visitor), and M status(vocational student). Effective Aug. 9, 2018, an individual with this status, and his/her dependents, will immediately begin to accrue unlawful presence in the following situations:

• The day after the student fails to pursue his/her course of study or authorized activity OR the student engages in unauthorized activity (e.g. unauthorized work).
• The day after student completes his/her course of study, including any authorized practical training (e.g. optional practical training) PLUS the authorized grace period (normally 60 days).
• The day after the student’s I-94 record expires (if the I-94 record has an expiration date other than “D/S”)
• The day after an immigration judge or in some cases the Board of Immigration Appeals, orders the student excluded, deported or removed.

In addition, while the new policy cannot be applied retroactively, a student will begin to accrue unlawful presence beginning Aug. 9, 2018, for prior violations. Thus if a student violated his/her status sometime before Aug. 9 and is still in the United States, then he/she will begin to accrue unlawful presence on Aug. 9, 2018.

Why is this significant?

This new policy changes an immigration practice that has existed since 1997. Under the previous policy, a student in F-1 status would accrue unlawful presence only when USCIS issued a formal finding of a status violation while adjudicating a request for an immigration benefit OR when an immigration judge ordered the student excluded, deported or removed.  The main difference between the prior policy and new policy (effective August 9, 2018) is that now unlawful presence begins when the violation occurs (based on the scenarios above) and not on the date of a formal finding by the government. Under the prior practice, USCIS rarely issued formal findings that would trigger unlawful presence for students who may have violated their status.  Thus, without the formal finding, a student could argue that he/she did not accrue unlawful presence and he/she remained eligible for future immigration benefits.

Pursuant the Immigration and Nationality Act (INA) Section 212(a)(9)(B), an individual who accrues more than 180 days of unlawful presence may be inadmissible for three years and an individual who accrues more than one year of unlawful presence may be inadmissible for 10 years. As accrual of unlawful presence becomes automatic (the day the violation occurs), a student could jeopardize his/her eligibility to extend or change status, to apply for a new visa, or apply for permanent residence. 

For dioceses with seminarians and religious orders with members pursuing full-time education in the United States, it is crucial for those students to be aware of this new policy. First, these students should speak with their university/college Designated School Official, or DSO, about these changes. Second, these students should understand the limits of their student status–what activities or work are permissible with their status. Third, if considering a change of schools or changes to their full-time enrollment, these students should discuss this with their DSO prior to making any changes. Finally, it should also be noted that there may be periods where the F-1 student is in “transition” and is NOT accruing unlawful presence. For example: when the student is between semesters changing schools or has been reinstated (as long as the changes and reinstatement have been approved); during the annual summer vacation between semesters (as long as the student is eligible and intends to register for the next term); and during the grace period (usually 60 days after graduation from the academic program). Please contact your RIS attorney if you have any questions about this.