• Attorney Prescott

Unlawful presence memo and the countdown to February 5, 2019.

Updated: Feb 17, 2019

On August 9, 2018, USCIS issued a new memo regarding unlawful presence for those on F, J and M nonimmigrant visas. This article will focus solely on F-1 status as most of the candidates I speak to are typically on F-1 status.

Although this memo came out more than 5 months ago, the reason I am writing this article now is that we are fast approaching the 180 day mark, namely, February 5, 2019. The reason this date is so significant is because anyone who is found to have violated their status on or before August 9, 2018 and stays beyond February 5, 2019, will have accrued more than 180 days of unlawful presence. This means that when they leave the US they will be subject to a 3 year bar.

Prior to this memo being released if USCIS made a determination that a student had violated his/her student status, the student would have only started accruing unlawful presence the day after the decision was issued. However, in light of the recent memo a student will accrue unlawful presence from the day of the status violation.

This year we saw denials regarding the candidate’s change of status for a variety of reasons. Maybe, it was because they took day 1 CPT or they were not being trained in accordance with the I-983 training plan while on STEM OPT extension. Whatever the reason USCIS have been finding that these students violated their status.

A simple example would be a candidate who took day 1 CPT in June 2017. By taking day 1 CPT the candidate violated their status. (see my article titled, "Why day 1 CPT is not a good idea and can cause more problems that it solves.") This candidate then filed an H-1B cap case in FY 2019, which was denied. The decision was received in November 2018 stating that the candidate violated their status from June 2017. Unlawful presence would accrue from August 9, 2018, in light of the recent memo. If this person stays beyond Feb 5, 2019, they trigger the 3 year bar based on having accrued more than 180 days or more of unlawful presence.

In order to start accruing unlawful presence there has to be a determination made by USCIS or an Immigration judge that the student violated their status. So maybe you applied in last year’s cap and were not selected and therefore there was no determination regarding your status. Are you safe? Think again. Let’s say you re-apply in FY 2020 and your change of status gets denied on the basis that you violated your status. If this decision comes in after August 9, 2019 then you may find yourself having accrued more than 365 days of unlawful presence. Now you are subject to a 10 year bar.

If you are worried that you have violated your F-1 status in any way speak to an Immigration Attorney ASAP. After February 5, 2019 your options may be limited.

January 23, 2019


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