May 21, 2018

On May 10, 2018, USCIS announced an interim policy memorandum for public comment which will become final and go into effect on August 9, 2018, superseding all prior guidance on how to calculate unlawful presence for foreign students admitted in F, J and M visa status. Under previous guidance in effect since 1997, students admitted to the United States for Duration of Status (those issued an I-94 until “D/S” rather than a specific end date) did not begin to accrue any unlawful presence until the date of a denial decision by USCIS of a request for another immigration benefit based on finding a violation of student visa status, or the date of a decision by an Immigration Judge ordering the individual excluded, deported or removed. Students who were admitted until a fixed date per an I-94 Entry/Departure Record with an specific end date would begin to accrue unlawful presence the day after expiration of that I-94, just like other nonimmigrants admitted until a specific end date.

Under the new policy effective August 9, 2018, applicable to F-1, J-1 and M-1 students, and their dependents in F-2, J-2 and M-2 status, unlawful presence will begin to accrue on the EARLIEST of:

-the day after the F, J or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
(i.e. the student drops out of an authorized course of full-time study*, drops below a full course-load, quits an authorized CPT or OPT employer**, or engages in any unauthorized employment)

-the day after completing the course of study or program, including any authorized practical training plus any authorized grace period (i.e. end of grace period + 1 day);

-the day after a date-certain Form I-94 expires;

-the day after DHS denies a request for an immigration benefit, if the denial decision includes a formal finding that the student violated nonimmigrant status;

-the day after an Immigration Judge or the Board of Immigration Appeals orders the alien removed, deported or excluded;

-F, J or M students who already failed to maintain status but did not yet begin accruing unlawful presence, will begin accruing unlawful presence on August 9, 2018.

The new policy memo clarifies that F, J & M students do not accrue unlawful presence during the period of up to 30 days before the program start date listed on Form I-20 or DS-2019; during any approved course of study, including any pre- or post-completion authorized practical training, **including authorized periods of unemployment under 8 CFR 214.2(f)(1)(ii)(E); during a change in educational levels under 8 CFR 214.2(f)(5)(ii), provided the student follows the procedures outlined in 8 CFR 214.2(f)(8); while the student is in a period of authorized cap-gap OPT extension under 8 CFR 214.2(f)(5)(vi); while an application for OPT or school transfer is pending, provided the student has maintained status; any period under 5 months out of status IF the student timely applies for reinstatement under 8 CFR 214.2(f)(16)and reinstatement is ultimately approved; during annual vacation; during any grace period – including 15-day grace period where early program withdrawal is sought and approved by the DSO; under Emergent Circumstances per a notice in the Federal Register suspending requirements for off-campus employment; *during a period of reduced course load authorized by the DSO under 8 CFR 214.2(f)(6)(H)(iii). Aliens under age 18, including F-2, J-2 or M-2 dependents, still do not accrue unlawful presence.  As indicated by the asterisks, it is not yet clear how aggressive USCIS and ICE will be about finding students unlawfully present when they fall out of status through no fault of their own – such as falling below a full course load due to illness or accident, or leaving an authorized off-campus employer because the job ends involuntarily, or the business closes.

On May 18, 2018, USCIS issued a reminder to all F-1 students on Optional Practical Training that transferring to another school or enrolling in a new course of study at another educational level (such as beginning a master’s program after completing a bachelor’s degree), automatically terminates that student’s OPT and corresponding Employment Authorization Document, per the regulations at 8 CFR §214.2(f)(10)(ii)(B). This rule interacts with the new policy noted above, as follows: if a student continues to work for an employer on an OPT EAD invalidated automatically by a school transfer or enrollment in a new course of study entered in the SEVIS database, after August 9, 2018, that unauthorized off-campus employment renders the student unlawfully present, as the Student and Exchange Visitor Program will promptly notify USCIS of any school transfer or new program enrollment which would terminate the student’s OPT EAD.