By virtue of its issuance of a memorandum, USCIS has created serious consequences for international students who violate their student status in the U.S. The May 11, 2018 memorandum (applicable also to M and J nonimmigrants) has changed the meaning – and increased the consequences – for any status violation. According to the memo set to become effective August 9, 2018, USCIS will begin to treat a status violation (for F, J, and M nonimmigrants) as “unlawful presence”.
“Unlawful presence” is a legal term meaning “present in the United States after expiration of the period of stay authorized”. In other words, a person is unlawfully present if they have “overstayed” the time allowed to be in the U.S. In contrast, a “status violation” can be any infraction that violates the terms of a nonimmigrant status. Some nonexclusive examples of status violations include dropping below the required full-time course-load, working more hours than authorized on curricular practical training, or working in a position that is not closely related to the field of study in optional practical training.
Currently, if a person violates their nonimmigrant status, they may leave the U.S. and re-enter to “correct” the violation or in some cases involving F-1 students seek reinstatement. However, if a person is unlawfully present in the U.S. and then departs on a trip, the person can be prevented from re-entering the U.S. for 3 years or 10 years, depending upon the duration of unlawful presence. There is a 3 year penalty (bar) for unlawful presence of 180 days to 365 days and a10 year penalty/bar to re-entry for unlawful presence of more than 365 days followed by a U.S. departure.
The impact of this change is significant. No longer will a student simply be able to exit the U.S. and re-enter the U.S. to resolve a status violation. Rather, the student may be prevented from returning to the U.S. for as long as ten years. Furthermore, due to very large number of ways a student may unwittingly technically violate his or her status, it is quite likely that many F-1 student visa holders will have no idea that they are about to get refused entry at an airport when they seek to travel back to the U.S. after a break from school or a foreign internship or study experience.
This change is especially problematic when coupled with the recent USCIS interpretation that STEM OPT students cannot work at third-party sites. If a STEM OPT student has worked (or continues to work) at a third-party site, USCIS may find the student has violated student status whereby the student would also begin accruing unlawful presence on August 9, 2018.
If this memo goes into force, the impact will become more severe in time. For example, at least a student who has already violated status and gets a decision from USCIS on an H-1B cap petition this year will start accruing unlawful presence on August 9th and have up to 180 days to leave the U.S. before being prevented from re-entering. In contrast, if a student violates status now but does not file (or get accepted) for H-1B classification until next year the student may accrue more than a year of unlawful presence by the time the USCIS makes a decision on next years’ H-1B cap case. At that time, the student could already be subject to the ten-year bar on returning to the U.S.
While it is likely this memorandum will be challenged in court, it is uncertain how the court will rule. The court may issue a temporary injunction, preventing the government from enforcing the memo until the matter is resolved in court. In the meantime, it is incumbent on international students to be wary of any situation that may violate their student status and to proactively consult their schools’ international student and scholar offices before taking any actions that may raise a status issue.
If you have any questions about this topic, please contact your HLG attorney or Sherry L. Neal, Esq. at email@example.com.