Office of International Programs

Accruing Unlawful Presence for F and J Visa Holders

On August 9, 2018, a new rule took effect that was put in place by the Department of Homeland Security (DHS), regarding "unlawful presence" on the part of those holding F or J visas/status and their dependents. Very basically, it means that DSH will begin counting and tracking "unlawful presence" if anyone with F or J status does anything, intentionally or unintentionally, to violate the terms of their status or to "lose" their legal status. The new rule has the potential to lead to bars or restrictions which could cause students and scholars to be barred from returning to the US for three years, ten years, or even permanently.

As this policy change can result in serious consequences for students and scholars, we will attempt to answer what we know and provide some examples. If you have questions about this new policy, please contact the USM Office of International Programs.

It is important to note that this is not a new rule. The possibility of being barred from the US has existed since the 1990's but in the past, this rule has not traditionally been applied to those here on student and scholar visas. Also the major difference is that under the "old rule" you did not begin to accrue unlawful presence until you were officially found to be in violation, such as by an immigration judge or USCIS (United States Citizenship and Immigration Services). Under the new rule, the unlawful presence "clock" begins as soon as you intentionally or unintentionally violate your status.

This message was adapted with permission from the University of Iowa.

Contents:

WHAT IS THE NEW RULE?

It makes a difference when the individual first failed to maintain legal status:

An individual who failed to maintain legal status before August 9, 2018 started accruing unlawful presence based on that failure on August 9 unless the individual already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the student/scholar violated his or her non-immigrant status while adjudicating a request for another immigration benefit. 
  • The day after an immigration judge ordered the student/scholar excluded, deported, or removed (whether or not the decision is appealed).

If status is lost on or after August 9, 2018, an F-1 individual begins accruing unlawful presence, as follows:

  • The day after the F visa holder no longer pursues the course of study or the authorized activity;
  • 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, as outlined in 8 CFR 214.2). Visa holders have a 60 day grace period after the completion of their program. The day after an immigration judge ordered the student/scholar excluded, deported, or removed (whether or not the decision is appealed).

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WHAT CAN HAPPEN IF AN INDIVIDUAL DOES ACCRUE UNLAWFUL PRESENCE? 

It is possible that an individual will be restricted from entering the US for three years, ten years or even permanently.

"Individuals who have accrued more than 180 days of unlawful presence in a single stay, and then depart, may be subject to three 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 re-enter the US without being admitted or paroled are permanently inadmissible,. Those subject to the three 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.

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WHAT ARE SOME EXAMPLES OF WAYS AN F-1 STUDENT MIGHT LOSE LEGAL STATUS?

These are the most common situations where students lose their legal status, but this is not an exhaustive list:

  • Students who enroll below full-time without obtaining the legally required reduced course load approval from OIP
  • Students who register for too many online course credits
  • Students who fail to correctly report/update their mailing address within 10 days as required by law
  • Students who do not extend an expiring I-20 before the end date
  • Students academically suspended after a semester ends, who do not transfer to a new U.S. school in a timely way or who do not leave the U.S. by the deadline
  • Students who stop attending class on a regular basis, which could result in dismissal from the course or a grade of an L for failure to attend.
  • Students who voluntarily withdraw while a semester is in session but who do not leave the U.S. within 15 days
  • Students who are withdrawn by the school for misconduct or other violations and do not leave the U.S.
  • Students who work off-campus without obtaining employment authorization
  • Students who graduate or complete their OPT but do not: 1) depart the U.S. by the established deadline, 2) transfer to a new school/program, or 3) change to another immigration status in a timely way (F-1 students have a 60 day grace period following graduation or the end of OPT)

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WHAT CAN I DO TO AVOID LOSING MY LEGAL STATUS? (F-1 Students)

  • Read your emails from USM and especially the USM International Office. We will be trying to keep you update on US Immigration policy changes as they happen. We will also be posting more information on the International Programs website so check back.
  • Be aware of your own immigration status! Even though we try to mointor your status, the law will hold you responsinble for your status and any violations. Please remember these important immigration requirements:
    • Always register for a full time course load (12 credits UG and 9 credits for Graduate students)
    • You can only count ONE online course per semester toward your full time enrollment
    • Do not work in the US illegally (you cannot work off campus without appropriate authorization)
    • Update your US address with USM International Programs within 10 days of any changes
    • Obtain an updated travel signature. (For most students this means once a year, if you are on OPT you I-20 mst be signed every 6 months and we recommend that Canadian students obtain a travel signature every 6 months)
    • Attend class on a regular basis and strive to do well academically. Immigration requires you to make "normal progress toward completing the course of study."  Be careful not to miss too many classes or fail too many classes
    • Do not engage in academic misconduct

If you lose your legal F-1 status for any reason please speak with the Office of International Programs immediately so that we can determine if you might be eligible to apply for reinstatement or if you will need to make plans to travel to regain your F-1 status.

A note about PARENTS:  OIP understands the role parents often play and that the thought of telling parents news that might upset, anger, or disappoint them can be scary.  No student looks forward to telling a parent they are going to be academically suspended and may have to return home for a year. In the past, the anxiety of giving parents bad news has sometimes contributed to students avoiding dealing with immigration problems, even to the extent of staying in the U.S. and pretending to still be attending school, which makes the problems grow even worse.  With this new rule in place the consequences of avoiding parents will be very serious, so imagine having to tell your parents you cannot come back to the U.S. at all for three or ten years, or perhaps ever. Be honest, deal with your problems immediately, and do not attempt to “hide” your immigration status/problems by staying in the U.S. without legal status in the hopes your parents might not find out.

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WHAT THINGS ARE OKAY AND WILL NOT COUNT TOWARD UNLAWFUL PRESENCE?

 The following examples are taken directly from the Unlawful Presence Memo and are the most common situations

  • During the period of up to 30 days before the program start date listed on the form I-20
  • While the F-1 is pursuing a full course of study at an educational institution approved by DHS for attendance by international students, and any additional periods of authorized pre- or post-completion practical training, including authorized periods of unemployment (example: up to 90 days of unemployment while on OPT)
  • During a change in educational levels (example: bachelor’s to master’s, or master’s to PhD) provided the F-1 transitions to the new educational level according to transfer procedures outlined in 8 CFR 214.2(f)(8)
  • While the F-1 non-immigrant is in an approved cap-gap period between OPT and an H-1B effective October 1
  • While the F-1’s application for post-completion Optional Practical Training (OPT) remains pending
  • While the F-1 non-immigrant is pursuing a school transfer provided that he or she has maintained status as provided in 8 CFR 214.2(f)(8)
  • When an F-1 student timely files for reinstatement of status, unlawful presence will not accrue during the time the request is pending. A reinstatement application will be considered "timely filed" if the F-1 has not been out of status for more than 5 months at the time of filing the reinstatement application. If the reinstatement request is approved, the period of time an F-1 was out of status prior to filing the application, along with the period of time during the pendency of the request, will not be counted as unlawful presence. If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. USCIS indicated that an F-1 student "whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status."
  • During annual vacation (summer break) if the F-1 is eligible and intends to register for the next term
  • During any additional grace period as permitted under 8 CFR 214.2(f)(5)(iv) to prepare for departure:
    • 60 days following completion of a course of study or authorized practical training (OPT);
    • 15 days if the designated school official (DSO) authorized the withdrawal from classes (SEVIS termination reason: authorized early withdrawal); or
    • No grace period if the F-1 non-immigrant failed to maintain a full course of study without the approval of the DSO or otherwise failed to maintain status).
  • During a period of reduced course load, as authorized by USM OIP

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 WHAT CAN I DO TO AVOID LOSING MY LEGAL STATUS (J-1 EXCHANGE STUDENT/ PROFESSOR/RESEARCH SCHOLARS)?

  • Do not change the research, teaching, or observation objectives as it appears on the DS-2019 – for example, if you are here to do research in biochemistry, you cannot shift to doing work that is different than what is listed on the DS-2019
  • Be sure you report changes in your U.S. residential address within 10 days any time you move
  • Students must always be enrolled full time 
  • Students must continue to make academic progress and studentswho voluntarily withdraw must make plans to depart within 15 days 
  • Maintain the Deparemtent of State required level of health insurance for you and any J-2 dependents for the entire duration of your DS-2019.
  • Do not leave the U.S. for a period of more than 30 days without advance approval from OIP.  J-2 dependents should not be left in the U.S. for more than 30 days if the J-1 is not present.
  • Do not engage in any employment, paid or unpaid, that is not with the department listed on your DS-2019, without prior approval from OIP first.
  • Notify OIP if your University of Soutehern Maine work ends earlier than the date listed on your DS-2019
  • Depart the US no later than 30 days after the end of your program. 

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WHAT ABOUT F-2 AND J-2 DEPENDENTS?

  • F-2 & J-2 dependents (the spouse and children under 21 of an F-1) rely upon the F-1 or J-1 for maintaining their legal status. If the F-1 or J-1 loses legal status, so do the dependents.
  • Dependents who are younger than 18 do not typically accrue unlawful presence.
  • Additionally, the F-2 or J-2 may violate their own status and become subject to unlawful presence. The most common reason for this is unauthorized use of public benefits.

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