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F – 1 Students


 

 

Accruing Unlawful Presence While on an F-Visa

Important Update Regarding Unlawful Presence

On Friday, May 3, 2019, a court injunction was ordered to temporarily block the Trump administration from enforcing the August 2018 rule changes regarding the accrual of “unlawful presence.” The injunction reverts back to the policy that was previously in place. We are hopeful this decision to stop the August 2018 rules will become permanent.

International students should be aware that maintaining their visa status by complying with the visa regulations remains important, and that this ruling, while reducing the severity of the consequences of violating status, does not change any rules about maintaining status.

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

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 as well as their dependents. Very basically, it means that DHS 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 cause people to be barred from returning to the U.S. for three years, ten years, or even permanently.

As this can have serious consequences for international students, and their dependents, ISSS will attempt to answer what we know about the proposal and give examples of the common situations that may occur to cause a student to lose status. Students who have questions should consult an ISSS adviser.

Technically this rule is not new – the possibility of being barred from the U.S. for three or ten years has existed since the 1990s, but it has not been commonly applied to international students or scholars.  And a major difference is that under the “old” rule, students and scholars did not begin to accrue unlawful presence until they were officially found to be in violation, such as by an immigration judge or USCIS.  The new proposal would have the unlawful presence “clock” begin immediately.


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 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).

What can happen if an individual does accrue unlawful presence?

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

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 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. (emphasis added)

- USCIS Changing Policy on Accrued Unlawful Presence by Non-immigrant Students and Exchange Visitors

What are examples of ways F students might lose legal status?

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

  • 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 fail to correctly report/update their mailing (residential) address in MyU (this prevents ISSS from submitting a required report to SEVIS that you are registered each fall/spring, and eventually leads to automated termination of your SEVIS record)
  • Students who enroll below full-time without obtaining the legally required ISSS Reduced Course Load approval
  • Students who register for too many online course credits
  • Students who do not extend an expiring I-20 before the end date
  • 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)

What can I do to avoid losing my legal status?

To be clear, it is your responsibility to maintain your F status.

ISSS advisers and other university staff are here to help you – but you must take responsibility for ensuring you follow the rules of your immigration status. Your best defense against losing your legal status is to:

  • Read your emails from the UMN and ISSS including the ISSS Weekly Update. If you see an email and you think it is incorrect, do not just ignore it – check with ISSS.
  • Be aware of your own immigration situation. While ISSS strives to make the best use of technology available to us, and we send reminder emails, sometimes technology fails. These reminders are a courtesy we provide, but, in  the law holds you responsible for your status. This is why you must remain aware of your own immigration situation – be aware of when your I-20 expires, keep your U.S. address updated, make sure you are enrolled full-time or have authorization from ISSS to drop below full-time.
  • Remember to follow these immigration requirements:
    • Register full-time (12 hours for undergraduates, 6 hours for most graduate students, and Professional Degree students should check with their school) or receive authorization to take a Reduced Course Load (undergraduate students need to be aware that the ISSS Reduced Course Load process is separate from the UMN’s 13-credit policy; obtaining the UMN’s 13-credit Exemption does not satisfy your immigration requirements)
    • Remember that you may count a maximum of the online or distance learning credits per semester towards your Full Course Load  requirements
    • Update your U.S. address in MyU within 10 days of any change; before doing so, review the directions on our website as addresses that are not formatted correctly may be rejected
    • Do not work in the U.S. illegally (do not work off-campus without obtaining authorization from ISSS)
    • Get an updated travel signature if you need to travel outside of the U.S. and the travel signature on your documents will have expired by the time you return to the U.S.; signatures are valid for one year or six months while on OPT
    • Follow deadlines - If ISSS gives you a deadline by which you need to do something, follow it. Missing a deadline could result in your losing your legal status.
    • Attend class and strive to do well academically. You do not have to get all A grades, but some students do not attend class (or attend sporadically) and eventually receive failing grades.
    • Too many low grades will impact your grade point average, which can cause you to drop below the required minimum GPA of your program. If this happens, you may be put on probation and given the chance to improve your GPA. Failure to do so will likely result in being suspended from the University of Minnesota for one full year. If this occurs, you will either need to leave the U.S. or transfer to another U.S. school. You cannot remain in the US and not attend school.
    • Do not engage in academic misconduct– this may lead you to be suspended or expelled at any point, including while a semester is in session or after/between semesters, which will impact your immigration status. Examples of misconduct include, but are not limited to, turning in or copying others’ work on assignments, looking at someone else’s test, paying for someone else to write papers for you, and hiring someone else to take online classes for you.
  • If you lose your legal F status for any reason, speak to an ISSS adviser IMMEDIATELY so that we can help you assess your situation and whether or not you qualify for reinstatement.
  • A word about parents – ISSS fully 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.

What things are not counted toward unlawful presence?

The policy memorandum stated the following are examples of lawful situations that do not count toward unlawful presence (emphasis added):

F-1 students generally do not accrue unlawful presence in certain situations, including but not limited to:

  • 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 ISSS

Do these rules apply to F-2 dependents?

  • F-2 dependents (the spouse and children under 21 of an F-1) rely upon the F-1 maintaining their legal status. If the F-1 loses legal status, so do the dependents.
  • Dependents who are younger than 18 do not typically accrue unlawful presence.

GPS