August 14, 2018

U.S. Immigration: New Unlawful Presence Rules for Students and Exchange Visitors on F-1, J-1 and M-1 Visas

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U.S. Immigration: New Unlawful Presence Rules for Students and Exchange Visitors on F-1, J-1 and M-1 Visas

Posted by: Christine Wrigley, Manager, Supply Chain Management and Fabiana Hershfield, Supply Chain Manager

A new policy on the consequences of status violations for foreign students and exchange visitors went into effect on August 9, 2018. Effective August 9, 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 as of August 9.

The U.S. Citizenship and Immigration Services (USCIS) has made several clarifications:

  • An F-1 or M-1 foreign student who files a timely request for reinstatement of their status after a violation will not accrue unlawful presence while the request is being adjudicated.
  • A J-1 exchange visitor will not be deemed to have accrued unlawful presence if he or she files a timely request for reinstatement after a status violation and the request is approved.

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 Department of Homeland Security (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: 

  • Making all required reports to their designated school official (DSO) or exchange program responsible officer (RO);
  • Ensuring that they do not engage in employment without authorization;
  • For those in a period of optional practical training, ensuring that they do not exceed limits on unemployment;
  • For those currently in school, ensuring that they do not fall below a full course of study;
  • Departing the United States after his or her course of study or program, plus any authorized grace period, are completed;
  • Departing the United States upon expiration of his or her Form I-94, if admitted until a specific date;
  • Making sure that dependent family members do not violate program rules; and,
  • Meeting all other Student and Exchange Visitor Program (SEVP) rules.

 For employers, this means: 

  • Meeting all reporting and evaluation responsibilities for employees working in a period of optional practical training;
  • Ensuring that job opportunities offered to students on optional practical training and curricular practical training meet program rules; and,
  • Encouraging F, J, and M employees to meet their SEVP compliance responsibilities.

Fragomen is closely following this subject and will issue further client alerts as developments occur.

© 2018 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved. This alert is for informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship between you and Fragomen Worldwide. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Worldwide.

Cartus Recommendations for Relocation Managers

  • Review with your immigration provider the expected impact to your company in relation to the new regulation.
  • Educate Human Resources, business units, and your foreign nationals on the potential company liability related to an unlawful presence in the United States.
  • Set expectations with the host business unit and the foreign national on the new policy.
  • F-1 students, J-1 exchange visitors, M-1 vocational students and their dependents should discuss any immigration concern directly with their assigned/or preferred immigration provider.

Should you require any further information about this or any other aspect of visa/immigration planning, please seek specialist advice from your immigration provider. 

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