On Jan 28 2019 by Feige M. Grundman

Why International Students and Scholars Should Care about the New Unlawful Presence Policy

In August 2018, the U.S. Citizenship & Immigration Services (USCIS) announced and implemented a new policy that significantly alters the definition of “unlawful presence” for international students and scholars. Effective August 9, 2018, the new policy applies to F-1 students, M-1 students, and J-1 scholars, as well as their dependents. Under the new policy, unlawful presence begins to accrue with the first instance of any status violation, which has serious implications for students and scholars.

Status Violations v. Unlawful Presence

Previously, a student or scholar could have failed to maintain status without necessarily beginning to accrue unlawful presence. Before the update in policy, an international student or scholar only began accruing unlawful presence if USCIS or an immigration judge issued an official decision that a status violation had occurred.

To receive any immigration benefit from within the United States, an individual must demonstrate that they have maintained status. This benefit can include transferring to another program, applying for a different visa status, filing for an extension, or even getting permanent residence.

An individual can violate status in a number of ways, such as staying in the United States after the end of the grace period. For F-1 students, status violations include falling below a full course load without approval from the international office. For J-1s, working in a new program and/or a new location without prior authorization, or failing to maintain insurance are considered status violations. In the past, some F-1 or M-1  status violations could be corrected through reinstatement by the international office; other status F/M/J violations could be corrected by traveling outside the United States and returning with a new visa stamp.

The Three- and Ten-Year Bars on Admissibility

Understanding the three- and ten-year bars to admissibility is key to the recognizing the consequences of the new policy. An individual who has been unlawfully present for more than 180 days but less than one year is barred from reentering the United States for a period of three years. An individual who has been unlawfully present for more than one year is barred from reentering the United States for a period of ten years.

Once an admissibility bar is triggered, an individual cannot apply for a visa or other immigration benefit without obtaining a formal waiver from USCIS of the inadmissibility grounds. Such waivers are only available in limited circumstances, and the burden of proof on the applicant is quite high – requiring demonstration that a U.S. citizen or permanent resident spouse, parent, or child of the visa applicant would suffer extreme hardship if the applicant could not return to the United States.

Implications of the New Unlawful Presence Policy

Under the new policy, any status violation can result in accrual of unlawful presence, even if the government has not provided any formal notice of a violation. On top of that, F, M, and J foreign nationals will start to accumulate unlawful presence dating back to the very first time that the status violation occurred, which may have been months or even years earlier. This swift accumulation of unlawful presence could easily amount to enough time to subject individuals to the three- or ten-year bars.

This means that under the new policy, schools are seriously limited in the ability to request reinstatement for students, and students and scholars may lose their ability to correct status violations.

Most significantly for all students, scholars, and dependent family members, any unauthorized work is a status violation – under the new policy, this will trigger accrual of unlawful presence.

Note that an activity can be considered “work” for immigration purposes regardless of whether it is paid or unpaid, whether on or off campus, whether paid in cash or through payroll, and/or whether someone receives a W-2 (employee) or a 1099 (independent contractor). Self-employment, working for an overseas employer while being in the United States, temp work, and other activities may be considered “work.”

Students and foreign visitors who fail to maintain status can now be considered unlawfully present, preventing them from immediately regaining their legal status and potentially barring them from reentering the United States for years.

This change in policy can have real, serious, and long-term consequences for those who are not vigilant against violating status. The new policy substantially heightens the stakes for any international students and scholars, and their university advisors, in properly maintaining legal status during their education in the United States.

If You’re Interested in Pursuing a Volunteer, Internship, or Work Opportunity

Please talk to your international advisor prior to engaging in a new volunteer, internship, or other work opportunity. If you have any further questions, please contact an employment-based immigration lawyer.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2019 Klasko Immigration Law Partners, LLP.  All rights reserved. Information may not be reproduced, displayed, modified or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP.  For permission, contact info@klaskolaw.com.