RECENT UPDATE: August 13, 2018
Under the revised final policy memorandum, effective Aug. 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.
Prior Update: May 21, 2018
Recently, the U.S. Citizenship and Immigration Services (USCIS) has implemented certain policy changes regarding how it handles cases of Nonimmigrant Students and Exchange Visitors. In particular, there are two major changes affecting foreign students and exchange visitors in the United States: 1) Changes in interpretation in the Optional Practical Training (OPT) Program; and 2) Changes in how the Service will calculate unlawful presence for students and exchange visitors who fail to maintain their status in the United States.
Changes for Certain STEM OPT Students
What is OPT?
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion).
Students in pre-completion OPT are authorized to work part-time (20 hours or less per week) or full-time when school is not in session. For those in post-completion OPT, applicants have the option of working part-time or full-time. Students with STEM degrees may apply for a 24-month extension if they meet certain requirements.
How has OPT changed for STEM Students?
In April 2018, USCIS updated the page on its website for Optional Practice Training for STEM students which seems to indicate its view that F-1 students in the STEM OPT program are not permitted to engage in OPT at third-party locations, particularly when it relates to staffing and temp agencies:
Staffing and temporary agencies may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student at its own place of business and they have a bona fide employer-employee relationship with the student.
The change in language on the USCIS website appears to be overreaching, and that a STEM OPT employee could be placed at the worksite of an employer's client or customer, as long as the STEM OPT student is a bona fide employee of the employer signing the training plan, and the employer that signs the training plan provides the practical training experience.
On May 18, 2018, USCIS published a reminder for F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD).
Changes in Unlawful Presence Calculation for Nonimmigrant Students and Exchange Visitors
On May 11, 2018, USCIS posted a policy memorandum (PDF, 179 KB) changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including their dependents, who fail to maintain their status in the United States.
According to USCIS Director L. Francis Cissna, this policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018, sending a clear message that "nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”
What was the old policy?
Previously, F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.
What has changed?
The new policy clarifies that F, J and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence as outlined below.
Individuals in F, J, and M status who failed to maintain their status before the effective date of August 9, 2018, will still be subject to the old policy. However, individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
- The day after they no longer pursue the course of study or the authorized activity or the day after they engage in an unauthorized activity;
- The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
- The day after the I-94 expires; or
- The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), orders them excluded, deported, or removed (whether or not the decision is appealed).
What happens if I accrue unlawful presence in the United States?
Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently barred from entry or admission.
Those subject to the 3-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.
Is this policy change final?
USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the USCIS Policy Memoranda for Comment page.
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