For many years, foreign students are given "D/S or duration of status" when they are admitted into the U.S. This allows them to legally remain in the country for as long as they maintain their status. They were considered in status until an immigration officer makes a formal determination that they violated their student status or an immigration judge issues a deportation order again them. Hence, it was possible for a student to have violated his or her status for a period of time without "falling out of status" or accruing unlawful presence. The new policy is to counter this "loophole" under the D/S rule.
Starting August 9, 2018, foreign students would start accruing unlawful status the day after they violate their nonimmigrant status. A formal finding by USCIS officers is not required. Examples of violation include unauthorized employment and failure to maintain full-time enrollment. Further, foreign students may also accrue unlawful presence if they remain in the U.S. after completion of a study program plus any authorized practical training and grace periods. If there is a fixed expiration date in the student's I-94 admission record, unlawful presence also starts to accrue the day after the expiration date.
Should a student be concerned about unlawful presence? Absolutely - accrual of unlawful presence can bar an international student from returning to the U.S. for three or ten years depending on the duration of unlawful presence.
Out-of-status international students may request for reinstatement of their nonimmigrant status. Under the revised new policy, the accumulation of unlawful presence is tolled after a reinstatement application is timely filed. Any accrued unlawful presence is cleared if reinstatement is approved. Unlawful presence would continue to accrue if the request is denied.
On the other hand, appealing or motioning to reopen denied applications will not halt the accrual of unlawful presence. Only if the appeal or motion is granted will any accumulated unlawful presence be cleared.
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Starting August 9, 2018, foreign students would start accruing unlawful status the day after they violate their nonimmigrant status. A formal finding by USCIS officers is not required. Examples of violation include unauthorized employment and failure to maintain full-time enrollment. Further, foreign students may also accrue unlawful presence if they remain in the U.S. after completion of a study program plus any authorized practical training and grace periods. If there is a fixed expiration date in the student's I-94 admission record, unlawful presence also starts to accrue the day after the expiration date.
Should a student be concerned about unlawful presence? Absolutely - accrual of unlawful presence can bar an international student from returning to the U.S. for three or ten years depending on the duration of unlawful presence.
Out-of-status international students may request for reinstatement of their nonimmigrant status. Under the revised new policy, the accumulation of unlawful presence is tolled after a reinstatement application is timely filed. Any accrued unlawful presence is cleared if reinstatement is approved. Unlawful presence would continue to accrue if the request is denied.
On the other hand, appealing or motioning to reopen denied applications will not halt the accrual of unlawful presence. Only if the appeal or motion is granted will any accumulated unlawful presence be cleared.
Various conditions can cause a student to violate their status and therefore become unlawfully present. Unauthorized employment is a common one. Others include not maintaining a full course load and failing to attend or pass classes. Minor violations such as taking one credit short of a full-time course load may be overlooked on a case-by-case basis and won't necessarily mean loss of status. Schools also have their own policies students need to follow. Generally, students should consult with their Designated School Official (DSO) before making any changes.
F-2, J-2 and M-2 dependents are also affected by this policy change. When the principal F-1, J-1 or M-1 visa holder loses his/her status, so does their dependent. Dependents can also lose their status on account of their own violations.
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