At a glance
The situation
A new policy on the consequences of status violations takes effect today for foreign students and exchange visitors. Beginning today, August 9, 2018, F-1 students, J-1 exchange visitors, M-1 vocational students and their dependents will automatically begin to accrue unlawful presence the day after they violate the terms of their nonimmigrant status, regardless of whether they were admitted for duration of status or, if admitted through a specific date, have not overstayed the period of admission on their I-94. Those who violated the terms of their nonimmigrant status before August 9 begin to accrue unlawful presence today.
A foreign national who has been unlawfully present for more than 180 days or one year or more is subject to a three-year or ten-year bar on reentering the United States and will not be eligible to apply for a visa, admission, or adjustment of status to permanent resident unless they are granted a waiver of inadmissibility or another form of relief.
In many instances, students and exchange visitors will not know that they are accruing unlawful presence until a DHS officer adjudicates a petition or application, such as an H-1B change of status petition, an adjustment of status application or an application for optional practical training (OPT) or STEM OPT employment authorization. Unfortunately, these adjudications may occur well after the triggering status violation, and the foreign national may already be subject to the three- or ten-year bar.
The new policy is a reversal of prior guidance, under which F, J, and M nonimmigrants holding an unexpired I-94 would not accrue unlawful presence unless and until there was a specific finding of a status violation by USCIS or an immigration judge.
What the new policy means for employers and foreign nationals
Foreign students, exchange visitors and their employers must ensure that they are in compliance with F, J, and M program rules to avoid triggering unlawful presence.
For students and exchange visitors, this means:
For employers, this means:
Fragomen is closely monitoring the implementation of the new policy and will provide updates as they occur.
This alert is for informational purposes only. If you are affected by this policy, please contact the immigration professional with whom you work at Fragomen.