Unlawful Presence for Students


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.

Obtaining and Maintaining Student Status

First, foreign nationals must apply to a Student and Exchange Visitor Program (SEVP) approved college or university.  Upon being accepted, the foreign national must pay a fee and the college or university will issue Form I-20.

Once a student has Form I-20 from a SEVP college or university, he or she may apply for a student visa.  An F visa is the most common and is needed to attend a college, university, high school, or private elementary school.  An M visa is for a vocational school and a J visa is for a temporary exchange program. If the student is approved, then he or she may enter the United States 30 days prior to beginning their academic studies.  This article will discuss primarily the F-1 student, although the new policy will be applied in the same way toward J and M students.

  1. Entering the United States

The Customs Border Protection officer will stamp the foreign national’s visa and issue electronic Form I-94 upon entering the United States, which will indicate how long the foreign national is legally allowed to stay in the United States.

Students entering under an F visa will receive a stamp that says “D/S” or “duration of status,” which means that the foreign national is legally allowed to stay in the United States as long as he or she properly maintain his or her status.

A student will successfully maintain his or her status if the student is completing their degree and is in good standing with their college or university or is completing authorized practical training (OPT) following completion.

      2. Terminating a Student’s Status

If a student fails to meet the above guidelines, then the college or universities’ Designated School Official (DSO) will terminate the student’s records in the Student and Exchange Visitor Information System (SEVIS).  The SEVIS is a communication system between the USCIS and all SEVP colleges and universities in the United States.

When a student is terminated the student is no longer eligible for any of the previous benefits of his or her status.  These benefits may include, but are not limited to, working through an approved OPT and continuing studying at a college or university.

Several reasons that the DSO may terminate a student’s status include: the student did not resume a full course load, engaged in unauthorized employment, withdrew from the University, or applied for a change in non-immigrant visa status.

Consequently, the DSO could terminate a student because a faculty advisor misguided the student on what courses the student needed to take or because the student applied to change his or her visa category and remain in the United States past his or her student visa expiration.

If a student’s status is terminated, then the student may appeal to have the status reinstated by a district director.  A reinstatement is valid as long as the student has not been out of status for more than 5 months at the time of the appeal, the student does not have a record of repeated violations, the student is currently or intends to pursue a full course load, the student has not engaged in unlawful employment, the violation resulted from circumstances beyond the student’s control, or the violation relates to the student’s course load that would have been under the discretion of the DSO.

If a foreign national remains in the United States for more than 180 days but less than a year or for one year or longer after his or her status has expired, then the student may be barred from reentering the United States for three up to ten years.

Previous USCIS Unlawful Presence Policy

 Since 1997 and reiterated in 2009 the USCIS has maintained that unlawful presence did not begin to accrue if a student failed to meet the requirements of his or her visa, 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.

The formal finding requirement required foreign nationals to be notified that they had violated their visa status and gave the foreign national a chance appeal for reinstatement before being unlawfully present in the United States for more than 180 days.

New USCIS Unlawful Presence Policy

Beginning August 9, 2018, unlawful presence will begin to accrue the moment an F, J, or M visa holder fails to maintain their status.  The day a foreign national failed to maintain status may be determined by a Department of Homeland Security (DHS) officer.

If an individual accrues more than 180 days of unlawful presence during a single stay, then he or she may be subject to a three-to-ten-year bar on admission into the United States.  The length of the unlawful stay in the United States determines the length of the bar.

For status violations found to have occurred on or before August 9, 2018, the effective date of the USCIS memo, unlawful presence will be calculated beginning August 10, 2018, if not accrued earlier.

An F, J, or M visa holder is subject to this interpretation regardless of whether the visa holder was aware that he or she was in violation of his or her status.  The burden of knowing whether one is or is not in violation is placed on the visa holder.

Consequences of the New Policy

 The USCIS new policy equates terminated status with unlawful presence.  Previously, if a student’s status was terminated the USCIS would have been required to provide notice first and the student would have begun accruing unlawful presence from the date of a negative USCIS formal finding.

This new policy could bar a student from entering the country for at a minimum three years. If a student unknowingly violated their status, then the student may lack the time to appeal the decision before residing in the United States for more than 180 days.

For example, a student may accidentally or unknowingly fail to take a full course load but may not learn of the error until the end of the academic year.  At the time when the student learns that he or she has failed to comply with the F-1 visa requirements, he or she has already been unlawfully present in the United States for over 180 days.

The new policy places the burden on foreign students to ensure that the advice of academic advisors and university employees is in compliance with the USCIS’s standards and this burden-shifting may decrease the number of foreign nationals entering America’s colleges and universities in the years to come.

The USCIS may choose not to enforce the law to its full extent in these situations, but on its face, this new policy looks draconian when students make a mistake that is all too common in colleges and universities.

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  1. Pingback: Overview of F-1 Student Status | Jane Y. Lee, Immigration Lawyer

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