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 ?