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Unlawful Presence for Non-Immigrant Students: What You Need to Know

Young woman wearing a hijab working in a research laboratory. Kuala Lumpur, Malaysia

On August 9, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that could affect people with certain visa or non-immigrant statuses in the United States. These include:

• Student (F-1 and F-2 dependents)
• Exchange Visitor (J-1 and J-2 dependents)
• Vocational Student (M-1 and M-2 dependents)

If you have a student visa, or someone in your family falls into these categories, please read on to learn how the new policy could affect you.

What is the New Policy?

The change in policy has to do with non-immigrants in violation of their non-immigrant status. A violation of status means that the federal government will view the student or visitor as having accrued “unlawful presence” in the United States from the day after that violation happened. This represents a departure from the previous policy. Before the new policy memorandum issued, accrual or accumulation of unlawful presence did not begin until the day that an immigration judge or USCIS determined there was a violation. What this means is that a student in the United States on a visa could start to accumulate unlawful presence in the country much sooner than previously.

What is a “violation of non-immigrant status?” A violation could take a number of forms, including:

  • Working off campus without authorization;
  • Working on campus more than 20 hours per week during a semester;
  • Carrying less than a full course load without first getting an acceptable approval for a reduced course load
  • Switching to a new research program without getting prior authorization (for J-1 visa holders);
  • Working at a location other than the one specified on the DS-2019 form (for J-1 visa holders);
  • Not maintaining insurance if required to do so; or
  • Remaining in the United States beyond your grace period.

“Unlawful presence” means that the U.S. government considers you to be unlawfully in the country because you are out of status. If you accumulate unlawful presence for a certain length of time, you could face serious consequences. Not only could you be removed from the U.S., but you may be unable to re-enter the country.

If you are in the United States, are not a lawful permanent resident or citizen, and accrue a certain amount of unlawful presence, you could be barred from the country for years. A person who accrues over 180 days, but under one year of unlawful presence is barred from re-entering the United States for three years. A person with over one year of unlawful presence is barred from being readmitted to the United States for ten years. If one or both of these bars applies to you, you will probably be ineligible to apply for a visa to the United States without getting a formal waiver from USCIS. This can be very difficult to achieve.

Violation of Non-Immigrant Status

If you violated your non-immigrant status before the date of the policy memorandum, August 9, 2018, that violation means that unlawful presence will begin to accrue as of August 9, 2018, but not before. However, if you applied for an immigration benefit before that date, and were denied based on a formal USCIS determination that you violated your status, unlawful presence began to accrue the day following that determination.

If you violated your non-immigrant status after the date of the policy memorandum, unlawful presence began to accrue the day after you violated your status. For example, if you began working at an on-campus job for 22 hours per week on August 10, 2018, you would begin to accrue unlawful presence as of August 11.

It is very important to understand that you are not required to be notified if you have begun accruing unlawful presence! The burden is on you to know what actions would result in unlawful presence and to avoid taking those actions.

If You Are a Student Who Has Accrued Unlawful Presence

If you believe that you or one of your dependents has violated non-immigrant status and has begun accruing unlawful presence in the United States, you must take steps to protect yourself. Do not ignore this problem and hope that it will go unnoticed. Doing so could result in your removal from the country and a years-long bar against being readmitted to the United States.

We encourage you to contact our law office to consult with an experienced Maryland immigration attorney about your situation and what you should do next.

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