USCIS originally posted a draft policy memo on May 10th that changes the way they calculate unlawful presence for F, J and M Visa holders. After public comment review ended, USCIS published the final policy on August 9th, 2018 that took effect from the same day i.e. Aug 9th, 2018. This new F1 unlawful presence memo has a significant impact on many students currently working on OPT and it will potentially change the way new H1Bs will be filed to avoid unlawful status accrual. Let’s look at the background, what is it and its impact and what you can do to avoid issues.
Update : On May 3rd, 2019, the F1 Unlawful presence memo was blocked nationwide by district court in North Carolina with a preliminary injunction. So, the below memo cannot be enforced by USCIS / DHS until the case is resolved. Check F1 Unlawful Presence Memo Lawsuit – Injunction, Next Steps
Firstly, Why this F1 Visa Unlawful Presence Memo by USCIS ?
As per DHS, for FY 2016, about 1.46 million visa holders on F, J or M status were supposed to either change status or leave USA. But, of the total 1.46 million, about 6.19 % ( around 100,000 ) F1/F2 holders, about 3.8% ( around 55,000) J visa holders and about 11.6% ( around 169,000 ) M visa holders overstayed in US. USCIS says that this new policy is to reduce the number of overstays and properly implement the inadmissibility of such overstayed individuals. This is one of the many initiatives that Trump Administration has taken up in the last few months to tighten rules.
What is the New F1 Unlawful Presence Memo 2018 in Summary ?
In short, the new policy memo changes the way USCIS computes the unlawful presence days for F, J and M visa holders after August 9th, 2018. We will look at F1 in specific in our context.
- Before August 9th, 2018 : If USCIS finds out that there was a violation of F1 status, when you apply for either H1B or other things, you will only accrue ( accumulate / add ) unlawful presence after the decision was made on your application.
- After August 9th, 2018 : As per the new policy memo, F1 students accrue ( accumulate/ add) unlawful presence from the day they have engaged in the unauthorised activity, which caused their F1 status violation. Basically, what it means is that, USCIS can add up all the previous days, before the decision, that you were working/ or doing some other activity in unauthorised way to your unlawful presence days in US.
- General Guideline : The policy says that F, J and M status holders accrue unlawful presence, once their course/ degree/ authorized activity, including authorized practical training like OPT is completed or I-94 expires or day after immigration judge orders the individual to be removed/ deported.
- Violations Before August 9th, 2018 : For anyone currently on F1 status, where USCIS determined that there were in status violation in the past, which is before Aug 9th, due to unauthorised activity, the unlawful presence days start counting from August 9th , 2018 onwards.
How will USCIS officers assess F1 students, J and M visa holders for unlawful Presence ?
USCIS officer would look at the one or more of the below sources to determine the unlawful presence of the F1 student or J, M visa holders.
- Information of visa holder contained in USCIS systems
- Information from SEVIS, SEVP Portal.
- Immigration history of the individual/ alien’s record in DHS or other immigration systems
- Information obtained as part of RFE, NOID, etc.
USCIS officer can use other tools or systems as well to get more details on your case, above list is just indicative.
Does USCIS randomly run checks or How do they know, if you are in unlawful presence ?
Well, it is very unlikely that USCIS will run random checks… In general, USCIS looks at anyone’s case in detail, when an application is filed with USCIS for any of the benefits or visas. Typically, for F1 students, this happens when they file I-765 for OPT and STEM OPT Extensions or Change of Status to H1B visa.
Does this memo automatically make students to be unlawfully present, if they believe that they are in violation or engaged in unauthorised activity ?
No, USCIS has to determine that you were unlawfully present because of unauthorised activity or an immigration judge has to say that you were in violation during your F1 visa time.
What is the biggest impact/ issue with the New F1 Unlawful Presence Memo 2018 ?
The biggest issue is that, if you accumulate more than 180 days of unlawful presence, the student/ individual are subject to 3 year bar, which means they cannot enter US on any visa for next 3 years. Also, if you accrue more than 365 days of unlawful presence, you will get 10 year bar and cannot enter US for 10 years on any Visa. Example : Imagine you graduated from school and got one year OPT and you are working in a job that is not related to your core field of degree. Now, when you applied for OPT extension or H1B, USCIS issues RFE saying you worked in non-related field in past and ultimately denies petition or change of status telling that your previous work on 12 month OPT was unauthorised. Now, the issue is, by the time you got this denial decision, you may have already spent over 180 days and thus accumulated over 180 days of unlawful presence, thus you are subject to a 3 year bar to enter US on any visa.
What can you do to avoid accruing Unlawful Presence on F1 status ?
As a student on F1 visa, if you follow all the proper rules and maintain your student status, you should be fine. Basically, you need to attend classes, take full load of credits, maintain minimum GPA as required by university, do not drop classes, do not engage in off-campus jobs, work on CPT and OPT in respective fields related to your degree, do not work at third party sites as per recent changes, follow STEM OPT requirements and work with DSO to keep your student records up to date and in correct status, you should be fine. If you believe, something went wrong or you are in some unauthorised activity, check with DSO or immigration attorney and do some corrective measures that are common like leaving the country and re-entering to fix your status issues.
If your application is Pending with USCIS, and you believe you could get impacted, what can you do , options ?
Let’s do the counting, 180 days from August 9th, 2018 comes to February 5th, 2019. Imagine, if your current application with USCIS, either OPT extension or H1B COS decision gets denied and it comes after Feb 5th, 2019, then you will be subject to 3 year bar, meaning you cannot enter US on any visa for 3 years. So, to avoid that issue, it is highly recommended that you go for premium processing of H1B once it is available. Talk to your immigration attorney and DSO and seek advice on the issue as it can be very tricky.
Overall, not everything regarding unauthorized activity will be clearly written by USCIS and there will be many grey areas, which are subject to discretion of the USCIS officer. There are some scenarios where info on the USCIS website may not be exactly like in ICE website or other places, so do not leave anything for chance and avoid engaging in any activity that can have potential risk to your status.
What do you think of the New F1 Unlawful Status memo ? What’s your take ?
References :
Hello,
I currently have an approved H1 and I just realized that I did not submit the final evaluation and location change updates to the DSO. My SEVIS is now frozen and I cannot update any of the details there. Am I in violation of my status?
Ajit,
It may not be a direct violation of status, as long as you did not work for them without authorization from DSO. Speak to your DSO and see, if there is any option to do a data fix…
My F1 status was terminated in March this year but I stopped going to class in January . When did I started accruing unlawful presence?
It depends on how your DSO has your I20 setup. I would suggest you check with DSO. Technically you were out of status since Jan as you violated F1 status rules, unless DSO gave exception.
I graduated in May 2018, and my Post Completion OPT began in July 2018. I flew back to my home country in June 2018 (while I got selected in the H1B lottery). Since I was not present in United States at that point of time, my Change of Status clause got dropped. I had my final H1B approved in late January, and received a Change of Status Denial notice in late Feb stating the reason and that “this decision” leaves me unlawfully present in the US. I also checked that my OPT completion date got changed to January 31, 2019 ( the day H1B was finally approved).
I am confused since when I am in status violation. The day I flew to my home country in June or the day I received the Denial decision notice in Late February.
Can you please help?
Abhi,
It could be a system issue as well due to the issues with the data sync. Check with your DSO on this and tell them to get data fix. Also, check with your attorney on this and get it sorted out. It could be a weird system issue. Make sure you print all your US Travel Departure and history for future reference from online.
Hello, I need your advice, am on f1 visa, on getting to the school for registration (Aug. 2018) I was told to re-submit my transcript which I immediately contacted my school back home ( it’s required to be signed and send from school) but fortunately there was holiday that caused delay but it arrived and was late, I couldn’t register for course because classes had already began, I was advise by the head of department to defer(Aug. 2019) and it was approved, my questions are, 1. Am I required to leave country for that period? 2. I actually stayed can it affect me in anyway? 3. Will i be penalized for late delivery of my transcripts which lead to reason why I can’t register for course?
Hello Kumar,
My STEM OPT expires Feb 15 2019. I have pending H1B which had RFE. Am I also considered in this policy? The article says 180 days unlawful presence so that means will it start from Feb 15 in my case or August 9th?
Please update.
Thanks
I recently came to know that I violated F1 status by working to a partner of chegg which makes engineering educational videos. I made 10 to 12 videos and earned 300 usd which is less than 600 usd and is not taxable. I contacted my Univeristy department and they are advsing me to terminate my record and issue a new i20 and a short re entry to US. What should I do? I even refused and returned the money which is a gift/ honorarium and have a letter from the company saying that I volunteered. Is there anything I can do to avoid this?
If not …I will not be eligible for an OPT since I will be graduating this spring. What do you suggest?
Hello， if an F-1 student currently on OPT who has a violation (out of status) 4 years ago, will this be considered as a violation (unlawful presence)?
Thanks!
Well, not sure, if it really matters, if it was that before..unless, you are still in violation…in such cases, it will be counted from Aug 9, 2018…
Hello. Could you please advise on the following: if an F-1 student currently on OPT STEM Extension is going to enroll to the same level degree, as the OPT STEM expires soon, and get CPT, would this step be considered as a violation (unlawful presence)? Thanks!
Well, it all depends on the degree you enroll and if CPT is allowed from day 1. There are degree mills that offer this day 1 CPT and it is hard to say, if you will run into issues at later point of time…Check with an attorney or your DSO.
Hello, Kumar.
Thank you for your reply! It is the same level degree (Master’s), and they offer Day 1 CPT. I still do not know if it can be an issue down the road. I will try to clarify it soon. Have a nice day!
Hi Kumar,
Question about this new memo. I applied for H1B while back, got approved and also had my H1B extension approved along with all stamps in passport. I also had OPT in my field of study beforehand. Now, I applied for EB3 back in 2017. It was all approved and had my I-485 few days ago. Officer said he needs more time to make decision as he saw I was out of my F-1 status while in College (potentially due to less then 12 credits per semester). Will this new rule take in affect or because my application was submitted before they will still use old rule. Thanks.
Well, it is hard to say. It may or may not…Please check with your attorney.
Exactly same thing happened in my case, I got H1B denial letter, along with that I also got another letter stating that I have been in USA in Unlawful status from past 1 year.
Now, i don’t know what to do, I have consulted different people, but could find a solution. Everyone are telling that I have to leave US and chances of getting back are only 5%.
Could you please give me any suggestion if you know any solution for this problem?
Sindu,
Sorry to hear about the situation. I highly recommend you check with an attorney or get USCIS Infopass appointment at the earliest and speak to someone and take required action. Do not delay.
Apologies for being off the topic here but I need some help regarding layoffs on h1b. I couldn’t find conclusive answer on google so hoping I can get some clarity here. If a person gets fired or laid off on h1b, how many days USCIS allows to stay in the country to get new employment opportunity or change visa type?
Vijay, You get 60 day grace period. Read USCIS rule
Thanks!
Hey Kumar, thanks for replying to my previous question and I am in a bad situation right now. I am currently on cap gap opt and have approved h1b from 1st Oct 18. Unfortunately, my company is shutting down our entire department and I will be laid of before my h1b starts. In that case what are my options? Do I get 60 days grace period after my cap gap opt ends?
You get 60 days grace period, if your employer withdraws petition before the start date. Check USCIS cap gap rule ( last but one paragraph on the page)
What is the situation for whoever currently working at third party sites on STEM OPT waiting for H1b approval with the same client? Should they stop working immediately?
Who ever working full time for companies like TCS, GapGemini at their client location should also considered out of status?
For STEM OPT, that is grey area as there is conflicting info between ICE and USCIS websites. It is suggested to upgrade your case to premium and discuss options with your attorney.
No, H1B workers with TCS, etc. working at third party sites may or may not considered depending on how the H1B petition is filed.
Thanks Kumar!
How come we tied working in field directly related to the studies as an unlawful presence ? Did the uscis memo go by the same example ?
Unlawful presence means your i94 being expired or your sevis got terminated .
Charan,
The memo does not use same example. But, in general, if USCIS denies your petition because of unauthorised activity like the example given above, you accrue unlawful status from the date you started such activity.