Important F/J Update: Unlawful Presence Policy
Feb. 7, 2020 Update: "On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status." The government may choose to appeal the decision. See full article by NAFSA.
May 3, 2019 Update: USCIS Temporarily Blocked from Enforcing Unlawful Presence Rules
As a result of an injunction issued by a federal court on May 3, 2019, USCIS is temporarily blocked from enforcing a policy put forward August 8, 2018 that penalizes students and J Exchange Visitors who violate the terms of their nonimmigrant status. In its order, the Court says:
"The Court therefore concludes that, under the circumstances of this case, a nationwide preliminary injunction is appropriate. Defendants [DHS] shall be enjoined from enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit." Find detailed information here.
(Original article Aug. 20, 2018) U.S. Citizenship and Immigration Services (USCIS) updated their policy, effective August 9, 2018, on how "unlawful presence" is accrued by international students and scholars in F and J visa classifications. A period of time in unlawful presence has serious consequences and can affect your eligibility to remain in or return to the United States.
3-Year and 10-Year Bars
An accrual of 180 days of unlawful presence leads to being barred from entering the U.S. for three years, while 365 days or more triggers a ten-year bar.
What Has Changed
You and your dependents have always been required to stay informed of and comply with regulations and deadlines that pertain to your status. What has changed is that now days of unlawful presence will begin to be counted after violating or failing to maintain your status.
The accrual of unlawful presence in the U.S. begins one day after:
you cease to pursue your course of study without an authorized leave of absence
you cease to pursue your authorized J-1 activity before the program end date on your DS-2019
you engage in any unauthorized activity. This includes but is not limited to:
working without authorization
dropping below fulltime enrollment without permission (students)
failure to show up for academic activities in the lab or department (research scholars)
your I-94 arrival record expires (if you were admitted until a certain date)
Always check your electronic I-94 record after arrival. If you were not admited for “D/S” (duration of status) contact the ISSO for guidance.
an immigration judge orders you to be excluded, deported or removed.
Important note: The new policy does not eliminate grace periods.
What is a grace period?
A grace period is a specified number of days following the completion of a program, including any authorized F-1 Practical Training or J-1 Academic Training, that allows you to remain in the U.S. to prepare for departure.
F-1: 60-day grace period following completion of a program of study as indicated on an I-20 or expiration of authorized F-1 Optional Practical Training.
J-1: 30-day grace period following completion of a J-1 student or scholar program as reflected on a DS-2019.
Being careful not to violate your status has always been of the utmost importance—that has not changed. Moving forward, as long as you---and your dependents--are vigilant about complying with regulations and maintaining your status, you will not experience any consequences from the new policy. Stay informed of the guidelines for maintaining your status, and always travel with the proper documents with which to return from a trip abroad.
Want more information?
Pages 3 -5 of the USCIS Policy Memorandum summarize the information for F and J students and scholars.
Please contact us if you have any questions.