May 3, 2019 Update: The U.S. District Court for the Middle District of North Carolina today issued a nationwide preliminary injunction that temporarily prevents the Department of Homeland Security (DHS) from enforcing the U.S. Citizenship and Immigration Services (USCIS) August 8, 2018 policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The preliminary injunction temporarily halts enforcement of the 2018 policy while the underlying case, Guilford College v. McAleenan, is resolved.

The Trump Administration intends to crack down on F-1 students and J-1 exchange visitors who violate the terms of their status. Under a new policy, effective August 9, 2018, even a minor, unintentional violation could trigger “unlawful presence.” Remaining in the U.S. for too long after such a violation could result in being barred from returning to the U.S. for 3 or 10 years, depending on the circumstances. Students and exchange visitors need to learn what activities trigger unlawful presence and what remedial steps to take after a violation.

Surprisingly, the standard to be applied to students is harsher than the standards currently applied to visitors for business or pleasure, workers, and executives. (Maybe we’re just waiting for the other shoe to drop).

What is the new “unlawful presence” rule?

Foreign students and exchange visitors are generally admitted to the U.S. for “duration of status” (D/S), meaning for the period of time shown on their necessary to complete their studies or visit as shown on their Form I-20 or Form DS-2019. The rule has long been that an violation of status could make them vulnerable to deportation. In addition, since 1997, the rule has been that they accrue “unlawful presence” on the day after USCIS formally finds a nonimmigrant status violation or an immigration judge orders deportation. Once “unlawful presence” begins to accrue, generally speaking, remaining in the U.S. for a single period of 180 days results on a 3-year bar on returning to the country, and remaining in the U.S. for an aggregate of one year results in a 10-year bar on returning to the country.

But under the Trump Administration’s new rule, effective Aug. 9, 2018, unlawful presence begins to accrue for an on the earliest of the following:

1. the day after the individual “no longer pursues the course of study or the authorized activity”;

2. they day after “engag[ing] in any unauthorized activity”; or

3. the day after completing the course of study or program (including any authorized practical training plus any authorized grace period).

This rule would apply to F-1 students, their F-2 dependents, J-1 exchange visitors, and their J-2 dependents. It is unclear whether, under the new rule, a principal’s unlawful presence automatically causes dependents to become unlawfully present.

“The key difference” between the Trump policy and the 1997 rule, according to former INS Executive Associate Commissioner Paul Virtue, “is that under the new policy the date on which a person begins to accrue unlawful presence is not tied to an official determination. Therefore, an individual may learn only after the fact that he or she has already accrued months of unlawful presence and is left with no recourse for avoiding the 3- and 10-year bars to admission.”

Moreover, this new policy is arguably contrary to law. According to the Immigration and Nationality Act, section 212(a)(9)(B)(ii), unlawful presence means being “present in the United States after the expiration of the period of stay authorized” by the Department of Homeland Security. In my opinion, violating one’s status (for example, engaging in unauthorized work) is a ground for deportation but doesn’t mean that a person’s period of stay has “expired.” Similarly, a person who violates traffic laws may lose their license, but that doesn’t mean their license is “expired.” That’s not how the English language works.

What activities count as failure to pursue a course of study?

For students, failure to maintain a full “course of study” is a status violation. For undergraduates, that’s 12 credits per semester. An F-1 student must make normal, satisfactory progress toward completing their program. There are exceptions for

• annual or summer vacation
• approved absences for medical reasons
• approved academic circumstances during the first semester such as difficulty with English reading requirements
• the final semester, if a student does not need 12 credits to complete the program of study.

These rules are harsh because a student may begin accruing unlawful presence without even knowing it, on the basis of a minor, unintentional violation. This is automatic, so no officer or judge makes a judgment call on whether it is fair.

Students sometimes run afoul of these rules because of extenuating circumstances, such as temporarily dropping below a full course load because of mental health issues, or leaving school temporarily for a family emergency, according to the New York Times.

What activities count as “unauthorized”?

The most common unauthorized activities include

1. attending a school other than the one the student was authorized to attend; and 
2. unauthorized employment, including working on campus more than 20 hours a week while school is in session (during the Spring and Fall semesters).

Students sometimes violate these rules unintentionally, such as when an F-1 permitted to engage in “qualifying on-campus” employment for up to 20 hours per week while school is in session inadvertently exceeds that 20-hour limit by just a couple hours.

What should students and exchange visitors do now?

First, find out about any training provided by your school or sponsor about the new rules.

Second, be acutely aware of what you need to do to pursue a full course of study or your authorized activity, as well as of what activities amount to a violation of status. There are detailed rules, such as the number of online courses you can take for credit. Take a cautious approach. Consult with your school, sponsor, or immigration lawyer about any questions.

Third, if you may have violated the terms of your status, immediately consult with an immigration lawyer about whether it’s a an option to apply to USCIS for reinstatement or get a new I-20 or DS-2019 and reenter the country. If you are subject to the 3 or 10 year bar, you will usually be ineligible for a visa or reentry, although waivers are available under narrow circumstances.

Resources

NAFSA: Association of International Educators, Accrual of Unlawful Presence and F, J, and M Nonimmigrants