by Maria Schneider

On May 11, 2018, the USCIS issued a policy memorandum that changed the rules regarding unlawful presence for F-1 students. Unlawful presence begins to accrue once a foreign national has stayed beyond the end date on his/her I-94 card. Because F-1 I-94 cards do not have an end date, but show D/S (duration of status) as the term of stay, unlawful presence previously did not apply to F-1s.

As of August 9, 2018, individuals in F, J, and M status who fail to maintain their status will start accruing unlawful presence on or after the date of one of the following events:

The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while adjudicating the benefit request;
  • The day after the student’s I-94 expires;
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), orders the student excluded, deported, or removed;
  • The day after the student no longer pursues a course of study or authorized activity, or the day after the student engages in unauthorized activity (e.g. unauthorized employment); or
  • The day after the student completes his/her course of study or program, including any authorized CPT or OPT plus any authorized grace period.
Individuals who have accrued more than 180 days of unlawful presence are generally subject to a 3 year bar of re-entry to the US. Individuals who accrue more than 365 days of unlawful presence are generally subject to a 10 year bar of re-entry to the US.

Things to keep in mind with regard to this new rule:
  • This new rule went into effect on August 9, 2018. Unlawful presence will accrue from August 9, 2018 or the date the student engages in unlawful activity forward. No formal notice will be given to the student as to when unlawful presence begins to accrue. If a student believes he or she may have engaged in unlawful activity, the student should contact their DSO or an immigration attorney immediately for advice.
  • The timely filing of an application for reinstatement stops the accrual of unlawful presence, and, if the application for reinstatement is approved, cures any unlawful presence in the student’s record. Applications for reinstatement must be filed within 5 months of the date the student first engaged in unlawful activity.
  • There is no accrual of unlawful presence during the cap-gap period or when a change of status from F, M, or J to another status has been filed, unless the change of status request is denied. Unlawful presence will begin to accrue from the date of the denial of the change of status going forward. If the change of status is approved, the USCIS will not reopen the previous F, M, or J. For example, if an F-1 student engaged in unlawful activity in 2016 while on F-1 status but has now changed status to H-1B, the USCIS will not reexamine the 2016 F-1.