A Change in Policy for
Foreign Nationals in F, J, and M Status
Casting a Wide Net Over International Students and Exchange Visitors
In a recent article published by The Boston Globe, the Department of Homeland Security (“DHS”) reported that in 2017 about 1.21 million foreign nationals studied in the United States. According to the same agency, this class of non-immigrants has a higher rate of overstaying their welcome than those in other non-immigrant categories.
Perhaps the reason for excessive overstays by these foreign nationals can be attributed to certain international students and exchange visitors being granted “duration of stay” (indicated as D/S) as their period of admission instead of requiring them to leave by a date certain. Duration of stay means the foreign national is admitted to the U.S. for the time necessary to pursue and finish their full course of study plus additional time to complete an internship, if applicable, and any allowable grace periods in order to depart the country.
Overstaying their status is just one of the many common ways foreign students and exchange visitors end up violating their status. Other common status violations include engaging in unauthorized activity, such as working off-campus without authorization, and not leaving the country after finishing their program or internship or within any applicable grace periods. Historically, these violations often went unrealized by the government until an application filed by the foreign national for another immigration benefit was being processed by United States Citizenship and Immigration Services (“USCIS”), the government agency responsible for handling immigration requests. For each day after the government (either USCIS or an immigration judge) found a status violation, the applicant would then be considered unlawfully present in the country, thereby violating their status and subjecting them to being barred from re-entering the U.S. after leaving or deportation.
On May 10, 2018, USCIS requested the public’s feedback in connection with a policy memorandum it issued about making the accrual of unlawful presence automatic after a status violation by all international students and exchange visitors regardless of whether they were admitted in duration of status or until a date certain.
After considering the public’s comments, USCIS finalized its policy, which took effect August 9, 2018. The accrual of unlawful presence will no longer begin after the government finds a status violation. As of August 9, 2018, on the earliest of the following, a foreign student or exchange visitor begins to automatically accrue unlawful presence the day after s/he:
- Engages in unauthorized activity incident to their status;
- Stops pursuing their course of study prior to completing the curriculum;
- Fails to leave the country after finishing their program, internship, or within any applicable grace periods; or
- Is ordered deported by an immigration judge.
Those who have engaged in any of the above situations prior to the effective date of the new policy will also start to automatically accrue unlawful presence on August 9, 2018 even if there has not been a previous determination by the government of a status violation.
However, the accrual of unlawful presence can be suspended. When an international student or exchange visitor files a reinstatement application within five (5) months after violating their status and while the application is being processed, the accrual of unlawful presence stops. If the application is denied, the accrual of unlawful presence resumes the day after the denial.
If you are in the United States in F, J, or M status or plan to seek one of these statuses, the moral of this story is to be vigilant about maintaining your status as an international student or exchange visitor. This administration has cast a wide net to catch all immigration violators, so the slightest misstep can either land you in deportation proceedings or bar you from re-entering the United States.
THIS POST IS SOLELY FOR INFORMATIONAL PURPOSES. IT SHALL NOT BE CONSTRUED AS LEGAL ADVICE NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CONSULT WITH A LICENSED AND KNOWLEDGEABLE IMMIGRATION ATTORNEY FOR LEGAL ADVICE.