U.S. Citizenship & Immigration Services (USCIS) has recently issued two updates that may have major consequences for foreign students and exchange visitors.
Most recently, USCIS issued a policy memorandum which changes the way USCIS will interpret and calculate unlawful presence for F-1 and J-1 visa holders (including their dependents). Generally, a foreign national who remains in the U.S. beyond the expiration date of their I-94 Arrival/Departure Record begins to accrue unlawful presence, and in certain circumstances, may be subject to a 3-year or 10-year bar to re-admission to the United States. Under the previous policy, however, foreign national students and exchange visitors who are granted duration of status (D/S) would not begin to accrue unlawful presence until either USCIS made a formal determination that a status violation had occurred or an immigration judge ordered a foreign national deported.
Under the new policy, starting August 9, 2018, F-1 and J-1 visa holders will begin to accrue unlawful presence on the earliest of the following:
- The day after the student/exchange visitor no longer pursues the course of study or authorized activity, or the day after the person engages in unauthorized activity
- The day after the grace period, after completing the course of study, program, or practical training (OPT/CPT)
- The day after the person’s Form I-94 Arrival/Departure Record expires;
- The day after an Immigration Judge orders the person deported or removed.
Simply put, this new policy, will have a dramatic impact on F-1 and J-1 nonimmigrants who are not vigilant with respect to maintaining valid status and/or are engaging in “unauthorized activity.”
Additionally, last month, USCIS updated its website regarding STEM OPT extensions , which allow F-1 STEM gradates to obtain an additional 24 months of Optional Practical Training (OPT) work authorization to work for employers that participate in the E-Verify program. The new USCIS guidance no longer permits students to engage in STEM OPT at third party worksite locations (even if the employer maintains the requisite employer-employee relationship with the STEM worker).
This new guidance changes previous policy which only required the student be a bona fide employee of the employer signing the I-983 training plan. Now, any employees performing duties at sites not controlled by the E-Verify employer could risk being in violation of their status.
These updates are very nuanced and complex, especially when it comes to when and whether someone is in violation of their status or engaged in unauthorized activities. As always, if you have questions on these issues or how to maintain status, please don’t hesitate to contact me.