F-1s Under Fire?

  • New policy memo impacting F-1s, J-1s, and M-1s is in a public comment period until June 11, 2018.
  • If adopted, this policy memo would set new standards for triggering unlawful presence.
  • Individuals may not be aware that they have accrued unlawful presence.  Without warning, they could be subject to re-entry bars after international travel.
  • This new policy is slated to go into effect on August 9, 2018.

Recent policy trends suggest that the F-1, J-1, and M-1 visa categories are being targeted under the 2017 Executive Order, "Enhancing Public Safety in the Interior of the United States."  The unannounced change to STEM OPT guidance as we discussed here and the recent "reminder" of actions that trigger the end of OPT EAD (hint, transferring schools or changing educational levels) suggest that the Service is building the basis to deny more H-1B applications than ever before. 

A recently released Policy Memorandum signals a drastic change to long-standing practices regarding the accrual of unlawful presence for foreign students, exchange visitors, vocational students, and their dependents.  And it could apply retroactively.

Just what it is unlawful presence (ULP) and why is it important?  Unlawful presence is the period of time that person spends in the U.S. after their authorized stay has ended. Calculating the number of days that a person spends while ULP is very important because the number of days can jeopardize one's ability to apply for immigration benefits and can trigger bars to admission to the U.S.

Until now, an F, J, or M nonimmigrant admitted for duration of status (D/S) who overstayed or violated their status (say, by working inappropriately) did not immediately begin accruing unlawful presence.   But, under the new policy, F, J, or M nonimmigrants admitted in D/S or admitted for a date certain, start accruing unlawful presence on the day after any of the following triggers:

  • The F, J, or M nonimmigrant no longer pursues the course of study or authorized activity or the day after he or she engages in an unauthorized activity;
  • The F, J, or M nonimmigrant completes his/her course of study or program (including any authorized practical training or grace period);
  • Form I-94 expires; or
  • An immigration judge (or BIA) enters an order for removal, deportation, or exclusion.

The stakes are high.  Individuals who accrue more than 180 days of ULP and then depart the U.S. may be subject to a three-year bar from readmission.  Those with more than 365 days of ULP may be barred from readmission for 10 years.  What's particularly worrisome is that the trigger date may not even be apparent until well after a person has accrued too much ULP.

Imagine that Immigration finds that a student violated status by using their OPT to work at an off-site location under their new guidance.  That could be the trigger date by which ULP started to accrue, but it doesn't become apparent until many months later in the course of an H-1B determination.  It's not an impossible scenario under the new guidance.

If implemented in its current form, this policy would disproportionately treat F-1, J-1, and M-1s more harshly than other nonimmigrants. For example, if an H-1 violates status, unlawful presence does not accrue from that date; it only accrues after the I-94 expires or a denial notice is generated.  In such circumstances, the individual has knowledge that unlawful presence is being counted. Also, in such an example, the dependents don't start accruing ULP just because a principal worked without authorization.  But under the new guidance, J, F, and M dependents will be penalized the same way as their principals.  

Remember that this isn't policy yet.  It's still open for public comment and we encourage you to let your voice be heard.