Maintaining Non-immigrant Lawful Status in the US: Important and Achievable

Following the strict immigration policies drafted by US President Donald Trump’s administration to promote the ‘Buy American Hire American’ policy, a new policy memorandum has been put forth that comes down heavily on students and professionals, who overstay their study tenure in the US. The policy that will come into effect from August 9, 2018 proposes to change the method of calculating the number of days that a student overstays in the US after the expiry of his/her visa status.

The USCIS, in its mission to maintain the integrity of the immigration system, considers that the F1 non-immigrants, who are permitted to enter the US for pursuing their studies, should depart or obtain another lawful immigration status like the H-1B visa within the stipulated 60 days of the completion of the program and any OPT that the student may desire to pursue. Overstaying this period or failing to acquire the H-1B visa status would be considered as an “unlawful presence” in the US and could result in a bar of 3 years or 10 years from entering the US.

This is a departure from the current regulation, where students who violate the terms of their status are not considered to have an unlawful presence unless an immigration judge or USCIS deemed them of a status violation. In this case, the count begins from the date of the “finding” of the status violation and if it crosses 180 days or one year since the order, then the student would be levied with the 3 or 10-year ban from re-entering the US.

So when exactly does a student’s status change from lawful to unlawful under the new regulations? It is important to note that students on F-1 status are not given a fixed date of expiration of status on their I-94, but are instead given a designation of ‘duration of status’ or D/S, which implies the duration of their lawful presence covers their program and OPT period.

Under the new policy memorandum, individuals with the F, J, or M status, who do not maintain their status on or after Aug. 9, 2018, will start accruing ‘unlawful presence’ on any of the following:

• The day after the student no longer pursues the program or the authorized activity, or the day after he/she engages in unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

The public has until June 11, 2018, to comment on the memo and it will come into effect on August 9, 2018.

With the new regulation that will come into effect on 9 August 2018, if you as an F1 student, have completed your program and not started OPT within 60 days of graduation, your stay is considered “unlawful”. If you end up overstaying after this by more than 180 days after the grace period (usually 60 days) and then depart from the US, then you could face a 3-year ban from re-entry. If you overstay for more than 1 year, whether accrued during a single visit or multiple stays in the US, then you cannot re-enter for 10 years. In this case, the count of unlawful status would commence after the 2 month grace period, which is provided to change your visa status to a lawful one or depart from the country.

The new policy may create hurdles if students exceed the 60-day grace period after their program ends, or in some cases, after the OPT ends. They may fall out of status while they are applying for a change of visa status like the H-1B. Due to this, students may have second thoughts about pursuing studies in the US and realizing their dreams of a bright future. However, our counsellors advocate that you can still study at a coveted university in the US and secure a bright future by following a few ground rules. Students should not be disheartened as the current regulation is not a significant deviation from the earlier one.

Should you require more information, do consult our counsellors, who will provide further insights on the subject.