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J – 1 Students


 

 

Accruing Unlawful Presence While on a J Student 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.

Effective August 9, 2018, USCIS put in place a new policy regarding “unlawful presence” on the part of those holding F or J visas/status as well as their dependents. The new policy 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 J individual first failed to maintain legal status:

An individual who failed to maintain legal status before August 9, 2018, starts accruing unlawful presence based on that failure on August 9, 2018, unless the individual had 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 nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after an immigration judge ordered the student excluded, deported, or removed (whether or not the decision is appealed).

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

  • The day after the J nonimmigrant no longer pursues the course of study or the authorized activity;  
  • The day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized academic training plus any authorized grace period);
  • The day after an immigration judge ordered the student 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 J students might lose legal status?

These are the most common situations where we see students lose their legal status, but it is by no means 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 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 the legally-required Reduced Course Load approval from ISSS.
  • Students who do not extend an expiring DS-2019 before the end date
  • Students who voluntarily withdraw while a semester is in session but who do not leave the U.S.
  • Students who are withdrawn by the school for misconduct or other violations and do not leave the US
  • Students who work off-campus without the required employment authorization
  • Students who graduate, or who complete a period of Academic Training, but do not 1) leave 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 (J-1 students have a 30 day grace period  following graduation or the end of Academic Training)
  • J-1 students who fail to enroll in health insurance that meets the Department of State guidelines. The University of Minnesota health insurance meets the Department of State guidelines.

What can I do to avoid losing my legal status?

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

ISSS advisers and other university staff are here to help you – but you, as the student, 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 U of MN and from ISSS.  Many students receive emails from ISSS and do not read them or disregard them.  If you see an email and you think it is in error, 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 the law holds you responsible for your status. This is why you must remain on top of your own immigration situation – be aware of when your DS-2019 expires, keep your U.S. address updated, and 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, 12 hours for non-degree students, 6 hours for most graduate students, or check with your department for Professional School Programs) or be authorized by ISSS for a reduced course load
    • Update your U.S. address in MyU within 10 days of any change
    • Do not work illegally (do not work off-campus without authorization)
    • 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.
    • Follow deadlines - If ISSS gives you a deadline by which you need to do something, be sure to follow it. Failing to meet certain deadlines could result in you losing your legal status.
    • Attend class and strive to do well academically.  This does not mean you have to get all A s, 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 raise your GPA. Failure to do so will likely result in you being suspended from the University of Minnesota for one full year. If this occurs, you will then need to either leave the U.S. or transfer to another US 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, not citing work that is coming from another source, 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 J status for any reason, speak to an ISSS adviser IMMEDIATELY so that we can help you assess your situation and whether 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 will not count toward unlawful presence?

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

J-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 DS-2019;
  • The period of time annotated on Form DS-2019 as the approved program of study
  • While the J-1 is pursuing a full course of study at an educational institution, and any additional periods of authorized pre- or post-completion academic training
  • During annual vacation (summer break) if the J-1 is eligible and intends to register for the next term;
  • During any additional grace period to prepare for departure:
    • 30 days following completion of a course of study or authorized academic training
    • No grace period if the J-1 nonimmigrant failed to maintain a full course of study without the approval of the ARO or otherwise failed to maintain status).
  • During a period of reduced course load, as authorized by ISSS
  • Any extension of program time annotated on Form DS-2019
  • The period of time a J-1 is out of status if he or she applied for reinstatement under 22 CFR 62.45, provided that the application is ultimately approved;

    • Filing a reinstatement request does not, by itself, place the student into a period of stay authorized and, therefore, does not stop the student from accruing unlawful presence. If the request is ultimately denied, the J-1 nonimmigrant will have begun accruing unlawful presence the day after the student stopped pursuing the course of study or authorized activity, unless he or she is otherwise protected from accruing unlawful presence. If the reinstatement application is approved, however, no unlawful presence will have accrued during the time period in which the student was out of status.

What about J-2 dependents?

  • J-2 dependents (the spouse and children under 21 of an J-1) rely upon the J-1 maintaining their legal status.  If the J-1 loses legal status, so do the dependents.
  • Note that dependents under 18 do not typically accrue unlawful presence.
GPS