Feb. 5, 2019: Last Date to Fix F-1 Status Violations

Any foreign national who has been unlawfully present in the United States for more than 180 days is banned from returning for three years.  For those who have been unlawfully present for 365 days, they will be barred from returning to the U.S. for ten years.  For foreigners who have been in F, M or J visa status, accrual of unlawful presence (ULP) has become a pressing issue as February 5, 2019 approaches.

As we reported last year, USCIS issued a new policy memo in May 2018 which became effective on August 9, 2018.  The new policy changed the way that foreign students and exchange visitors (F-1, M-1, J-1) become out of legal status.  Previously, foreign students were considered in legal status unless there is a formal decision by the U.S. Government that they've violated their status.  However, after August 9, 2018, foreign students became automatically out of status the day after the occurrence of  any status violation. Examples of violations include failure to take the required number of classes, working without authorization, failing to extend the I-20, failure to depart the U.S. after program completion, illegal CPT employment, taking too many online classes, etc. 

More importantly, status violations from long time ago can cause the student to lose legal status as of August 9, 2018.   It is unclear to what extent DHS will enforce this new policy.  Technically speaking, a student who failed to even report her residential address three years ago could be considered a status violation which made her "fall out" of status on August 9, 2018.  After 180 days - on February 5, 2019 - the student would have accrued sufficient ULP in the United States to make her ineligible to return for three years.  Can the person just stay in the U.S.?  Unfortunately, remaining in the U.S. is also not a viable option for the student. Because of her failure to maintain legal status, it would be difficult for her to change to another non-immigrant status or adjust status to become a permanent resident. 

For persons who have violated their F, M or J status before, they should consult with an experienced immigration attorney immediately.  One possible solution is to leave the U.S. before February 5, 2019 so as to break the 180 days of unlawful presence.  It doesn't mean that they will certainly be able to return to the U.S.; at least they would not be subject to the three-year bar.  It is a complicated issue.  Each person's situation is different and careful analysis is required before making any decision.