The USCIS has changed the rules again.

This time it affects students in F, J, and M status, effective as of August 9, 2018. The new rules have to do with how the government will calculate unlawful presence for students, which can be triggered by quitting or missing too much school, taking unauthorized employment, changing programs improperly, or any number of other actions that show an intent to stay in the U.S.A. permanently. Read below for a breakdown of how this new change can affect you.

The rule change changes how USCIS calculates the unlawful presence, more specifically when the timer starts to tick. The rules have become more restrictive. Advances in technological databases such as SEVIS (Student and Exchange Visitor Information System) have enhanced the government’s ability to know when a student violates their status, therefore prompting this rule change. These new rules were announced in Policy Memorandum PM-602-1060.1, which can be read here.

Unlawful presence is important to keep track in order to avoid bars on reentry. Between 6-12 months of unlawful presence can result in a three-year bar on reentry, and over a year of unlawful presence can result in a ten-year bar on reentry. For this reason, the new rule change is particularly impactful on students who could be accruing unlawful presence this very moment. A comparison of the old and new methods of calculating when to start the unlawful presence timer is given below.

BEFORE:

Prior to this policy change, the USCIS was not proactive in assessing or determining status violations for students. Rather, this issue would generally come into play when a student applied for an extension or another status. At that time the USCIS would give a cursory assessment to whether the nonimmigrant status was maintained. In the absence of evidence that the student left the academic program or took up unlawful employment the inquiry would end.

Most students have I-94s that denote “D/S,” which stands for “duration of status.” This is opposed to I-94s with a specific date, which are not as common for student visas. The “D/S” annotation on an I-94 would defer to the date on the student’s I-20 or DS-2019 to determine the latest date the student could be present, unless some other violation was discovered during a subsequent request by the student for another immigration benefit or after an order of removal.

NEW RULE:

Under the new rule, USCIS will proactively determine the date that a student begins accruing unlawful presence based on input from the various databases available to immigration officers. The Policy Memo lists some triggering events:

Student stops pursuing their approved course of study;
Student engages in unauthorized activity (could be employment, could be labor certification for Green Card, etc.);
Student completes course of study;
Student’s I-94 date passes (unless it is “D/S”);
Student is issued an order of removal by immigration judge.

If any of these triggering events happened under the old rules, the unlawful presence timer would not start until the student submitted another application, the negative evidence came to the surface, and the USCIS issued a “formal” finding of a nonimmigrant status violation. But under the new rules, any negative evidence of a status violation that appears in a government database is fair game and grounds to start the unlawful presence clock. Note that the new rule became effective August 9, 2018. That means that your unlawful presence started accruing on August 9 if you are in violation of status under the new rules but not the old.

If this happens to you, the USCIS will not send you a notice that unlawful presence has began accruing. Rather, it will silently start the clock against you and a student might not realize it until they submit an application months down the road only to find out they’re already subject to a bar on reentry. In other words, this is going to be a silent dream-killer for unsuspecting students. The element of fear and not knowing is part of the ploy to scare students into compliance in the current “zero-tolerance” environment.

Student status is no longer a walk in the park thanks to this new rule and its accelerated accrual of unlawful presence. As such, make sure to confer with your immigration attorney before making any changes to your student status or applying for other immigration benefits.