Unlawful Presence for Students

Introduction

The start of a new academic year will bring thousands of foreign nationals to the United States to study at one of the nation’s many rigorous academic institutions.  The United States derives many benefits from allowing foreign nationals to study at its colleges and universities, including but not limited to, diversified classroom discussions and enriched collegiate clubs and extracurricular activities.

Unlike their American colleagues, foreign national students must maintain lawful  presence and abide by all of the United States Citizen and Immigration Services (USCIS) requirements.  Traditionally, if a student failed to meet the requirements of his or her visa, then unlawful presence would not begin to accrue until the day after the USCIS made a formal finding that a nonimmigrant status violation had occurred or an immigration judge ordered the student excluded, deported, or removed, whichever came first.

However, the USCIS has announced in its May 2018 memorandum a change in its policy for calculating when a student will begin to accrue unlawful presence. Beginning August 9, 2018, a student will begin to accrue unlawful presence the moment the student’s F-1 status has expired or the student’s admitted purpose has ended.

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Students & Cap-Gap Protection

Since 2008 an F-1 student who has a pending H-1B application at the United States Citizenship & Immigration Services (USCIS) to change status from a student to a professionally skilled worker will be able to automatically extend his/her lawful status until October 1 of the fiscal year for which H-1B status is being requested.  The same is true for students who have been granted optional practical training (OPT) and may continue to remain in the United States and work should their OPT expire before October 1.  Those students who have not been granted OPT will have lawful status to remain in the United States but will not be able to work until their H-1B application has been approved.

For this rule to apply the H-1B application must have been properly filed with USCIS, which means the change of status application was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).  An application is generally considered “filed” once it is accepted by USCIS. In the context of the H-1B lottery, the petition may have been submitted on April 1, but it will not be accepted for processing until after the H-1B lottery has been conducted some weeks later. If the H-1B petition is rejected, denied, or revoked, the automatic extension of status and work authorization will immediately terminate.