Change in Determining Unlawful Presence for International Students and Exchange Visitors

Feb 14, 2020

Update by Kristine Nazir

On August 8, 2019, DHS issued a new policy that announced that foreign students would begin accumulating “unlawful presence” if any violation of status had occurred, whether known to the student or not. On May 3, 2019, in Guilford College et al. v. DHS, the U.S. District Court for the Middle District of North Carolina issued a nationwide preliminary injunction stopping DHS from enforcing its new policy during the pendency of the case. On February 6, 2020, the Court granted summary judgment in favor of the plaintiffs and issued a nationwide permanent injunction. As a result, DHS is now permanently enjoined from applying the August 2018 memorandum. The government has the right to appeal to the Fourth Circuit.

Originally published on May 18, 2018, by Mollie Hennessee.

On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum changing when individuals present in the U.S. as international students (Fs) or exchange visitors (Js) begin to accrue unlawful presence.   This change is significant as it could affect students”™ and exchange visitors”™ eligibility to change to a different nonimmigrant status, seek permanent resident status, and/or return to the United States if they travel abroad after accruing a certain number of days of unlawful presence.

When most nonimmigrants are admitted to the United States, U.S. Customs and Border Protection creates an electronic I-94, Arrival/Departure Record, that provides a specific date for when their status ends and they must depart the U.S.   Nonimmigrants who remain in the U.S. beyond the expiration of their I-94s begin accruing unlawful presence unless they file a nonfrivolous application extend their status.   However, unlike most other nonimmigrant categories, the I-94s created for international students (Fs) and exchange visitors (Js) typically do not contain a specific departure date.   Instead, these individuals are admitted for “duration of status” or “D/S.”   Prior to release of the new policy, individuals admitted for duration of status would not begin accruing unlawful presence until either USCIS formally found that the individual had violated his/her nonimmigrant status while adjudicating a request for another immigration benefit or an immigration judge ordered the individual deported.

Under the new policy, international students and exchange visitors (along with foreign vocational students (Ms) who have typically been issued a specific end date on their I-94s) will begin to accrue unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or authorized activity, or the day after he or she engaged in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practice training and any authorized grace period);
  • The day after the I-94 expires (if issued with a specific expiration date); or
  • The day after an immigration judge orders the individual deported.

Thus, an F-1 student who mistakenly begins working pursuant to Curricular Practical Training (CPT) one day before the period of CPT approved by her school starts would immediately begin accruing unlawful presence.   Similarly, a J-1 student who inadvertently engages in unauthorized employment but does not realize his mistake until a year later will have accrued a full year of unlawful presence, beginning on the first day of unauthorized employment.

The potential impact of this policy change is significant.   Individuals who are unlawfully present are usually not eligible to change to a different nonimmigrant status.   In addition, unlawfully present individuals are also in many cases not eligible to adjust their status to a permanent resident.   Perhaps most concerning are the automatic bars to returning to the United States after a certain number of days of unlawful presence are accrued.   In particular, individuals who depart the United States after accruing more than 180 days but less than one year of unlawful presence are barred from returning for a period of 3 years, and individuals who are unlawfully present for a year or more are barred from returning to the United States for a period of 10 years.

USCIS’s new policy will go into effect on August 9, 2018.   Thus, as of that date, students, schools, and companies employing these individuals must be diligent in ensuring that they are complying with all aspects of their F, J, or M nonimmigrant status in order to avoid the inadvertent accrual of unlawful presence and the short and long-term limitations that come with falling out of status.   USCIS is accepting public comments on this policy change until June  11,  2018.   Members of the public wishing to submit a comment may do so here.

Kristine Nazir represents corporations and institutions of higher education with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization.   Prior to joining the firm, Kristine clerked for the Honorable Jeffrey M. Geller at the Baltimore City Circuit Court and for the Department of Justice, Executive Office for Immigration Review at the Arlington Immigration Court. During law school, Kristine interned with the Department of Homeland Security, Immigration and Customs Enforcement, Office of the Principal Legal Advisor and National Security Law Section; the Superior Court of the District of Columbia; and Fragomen, Del Rey, Bernsen, & Loewy LLP. Before attending law school, Kristine also served in Peace Corps Mongolia as a community economic development volunteer.

Melanie Gurley Keeney practices in the areas of employment, immigration and education law. Melanie has been included in Best Lawyers in America ® for 25 years, and has been recognized in all areas of her practice. She also has been named to Missouri & Kansas Super Lawyers ® lists for over 10 years, and has been rated one of the top 50 female lawyers in Missouri and Kansas. She was named a “Top Missouri Lawyer” by St. Louis Magazine and Kansas City Magazine for Immigration Law. Melanie has been distinguished as Best Lawyers ®  St. Louis Immigration Law Lawyer of the Year in 2019, 2015, and 2012, and St. Louis Education Law Lawyer of the year in 2017. In 2016, Missouri Lawyers Weekly presented Melanie with the Women’s Justice Litigation Practitioner Award and in 2014, Washington University School of Law honored Melanie with the International Women’s Day Award for Employment Law. She has served as an adjunct professor at Washington University and is a frequent presenter on legal topics. Melanie is a founding Shareholder of the Firm and currently serves as the Chairperson of the Firm.

Mollie E. Hennessee practices primarily in the areas of immigration, higher education, and employment law. She represents corporations, educational institutions, and individuals with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization. Mollie also represents institutions of higher education with respect to employment and termination matters, student rights, and civil rights. Prior to joining the Firm, Mollie worked for the Department of Homeland Security’s Immigration and Customs Enforcement as an Assistant Chief Counsel. While in law school, Mollie served as an intern for the Honorable Catherine D. Perry of the United States District Court in Eastern Missouri. Mollie earned her B.A. from Saint Louis University, where she also received her law degree.

Immigration – The Firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.