On May 11, USCIS posted a proposed Policy Memo on its website which, if implemented, would significantly change how unlawful presence is calculated for F-1 students and certain exchange visitors. Being “out of status” and “unlawfully present” are not the same under the immigration regulations – being unlawfully present is much more serious, and can result in a 3-year bar against re-entry to the U.S. (for 6 months or more of unlawful presence), or a 10-year bar against re-entry (for 12 months or more of unlawful presence).

These 3- and 10-year bars, in particular, are why the unlawful presence calculation is extremely important. Under the current calculation, which has been in place since 1997, F-1 students who did not maintain proper status only begin accruing unlawful presence when one of 3 events occurs: 

• they receive an adverse decision (i.e., a denial notice) from USCIS informing them that they have not been maintaining proper status and are therefore unlawfully present;
• an immigration judge makes a similar determination, or
• an I-94 with an end-date expires (this is less common since F-1 students’ I-94s typically list “D/S” rather than an end-date). 

This framework is designed to put the student on notice that they are now unlawfully present in the U.S., even though the maintenance of status issue could date back several months (for example, if it is determined that the F-1 student was improperly issued CPT during the first year of the degree program). The notice that the student is now unlawfully present, through a notice denying a change of status request to H-1B, for example, triggers the 6-month clock for the student to depart the U.S. before an admission bar is applied. 

Under the new framework, unlawful presence will date back to the day after the failure to maintain status occurred – it will essentially equate being out of status and being unlawfully present, even though the two terms do not have the same meaning, and is not applied to any other nonimmigrant visa classifications at this time. 

This retroactive application of unlawful presence is particularly problematic. For example, an F-1 student who received CPT in his first year of study, who also has an H-1B change of status application filed for him and selected in the lottery in April, may find out on August 30 in his H-1B decision that his first-year CPT is considered invalid because USCIS was not persuaded that it was an essential component of the degree program. 

• Under the current framework, the student may be considered to have been out of status during the entire CPT period, dating back to September of the previous year, but unlawful presence only begins to accrue on August 30, the day he receives the USCIS decision informing him of the same. He is now on notice to depart as soon as possible (and apply for the H-1B visa stamp at a consulate), or risk a 3-year re-entry bar if he remains in the U.S. beyond the end of February. 

• Under the proposed policy memo’s framework, the student could be considered to be both out of status and unlawfully present from the second day of his CPT employment – which by that point, maybe a year ago. He would find out, on August 30, that he has already accrued almost one year of unlawful presence. 

The proposed memo does offer some respite for F-1 students who have applied in this year’s lottery – it proposes that failures to maintain the status that began prior to August 9, 2018, will be considered unlawfully present dating back only to August 9, 2018, the date that this proposed memo will go into effect. But if this memo goes into effect, it will significantly jeopardize the ability of thousands of F-1 students in subsequent years to eventually change status to H-1B or obtain a visa from a consulate later, if it turns out there has been any maintenance of status issue during their studies in the U.S. The likelihood of unknown status violations may increase as well, as USCIS continues to “clarify” or update policies that invalidate arrangements that were previously fine, such as third-party placement during the STEM OPT. 

The memo is currently still a proposal – it has not gone into effect yet, and USCIS is currently accepting comments from the public on the proposed policy (https://www.uscis.gov/outreach/feedback-opportunities/policy-memoranda-comment). The comment period ends June 11, so we urge our readers to send in comments advocating against the implementation of the memo. Our office has drafted a sample comment below from the point of view of an F-1 student, but we recommend personalizing it to reflect your own situation. Comments should be e-mailed to publicengagementfeedback@uscis.dhs.gov with the subject line: Comments on Proposed Policy Memo “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602—1060). 

(Draft for Students to Comment) 

E-mail to: publicengagementfeedback@uscis.dhs.gov 

Subject:           Comments on Proposed Policy Memo “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602—1060) 

Dear Director: 

I would like to submit the following comments in response to the USCIS Proposed Policy Memo “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602—1060), posted on May 11, 2018. 

I am an F-1 international student who has recently graduated from [university] and am working based on Optional Practical Training (OPT). My employer has recently petitioned for my H-1B work visa during the cap-subject application period in April. 

My concern with the proposed memorandum is that its new calculation of accrual of unlawful presence may jeopardize my ability to obtain a nonimmigrant visa from a consulate. By essentially equating unlawful presence with failure to maintain proper status, the policy memo puts an undue burden on F-1 students and penalizes them retroactively. The new calculation would render F-1 students unlawfully present dating back to the day after a failure to maintain F-1 status began, rather than from the day of an adverse decision by DHS or an immigration judge. 

This is an undue burden and disproportionate penalty on us F-1 students because the policies for maintaining proper F-1 status have not always been made uniformly clear to us, or even to our DSOs. As an F-1 student, I rely heavily on my school’s DSO in order to maintain valid status, as he or she issues my I-20s, endorses the I-20s for work authorization, and updates my records in the SEVIS system. F-1 students may have engaged in certain employment activities with the full endorsement of their school’s DSO, and issuance of an Employment Authorization Document by DHS, only to discover later that the initial grant of work authorization was improper. 

These inconsistencies are sometimes due to DSO error but are also due to DHS interpretations that may change without warning and get applied retroactively, to our detriment. Updates to USCIS interpretation of employer-employee relationships, for example, may retroactively invalidate an arrangement that I worked under during my OPT training period. The proposed policy memo would result in accrual of unlawful presence retroactively, during a period of time when USCIS policy was different or unclear. 

Furthermore, the extensive processing times for H-1B change of status petitions, combined with the suspension of premium processing for cap-subject H-1B applications, puts students like me at risk of having accrued unlawful presence for more than six months by the time USCIS has adjudicated my H-1B application and made a determination on whether I have maintained proper status. The extensive service center backlogs, suspension of premium processing, and sudden change in unlawful presence interpretation are all beyond the control of F-1 students. Under this memo, I may be determined to have unknowingly accrued several months of unlawful presence, and a possible 3- or 10-year bar against re-entry, without having possessed the intent to do so, and without any means to remedy my situation once I become aware of it. 

The accrual of unlawful presence calculation is currently linked to an adverse determination by DHS or an immigration judge (or by the expiration of an I-94) because such a determination actively puts the student on notice that he or she was no longer authorized to stay and/or work in the U.S., and should depart immediately. The calculation under this proposed memo will put students like me in a position to have possibly accrued several months of unlawful presence unknowingly. It is further exacerbated by the fact that their accrual of unlawful presence may have been endorsed by my school’s DSO, the main immigration-related official that I have any contact with and on whom I rely. The application of the proposed memo will unfairly penalize students like me who have acted in good faith, who timely applied for work authorization, and acted according to the policies in effect at the time. It will affect our ability to apply for any other nonimmigrant visa in the U.S., as well as prevent us from applying for a visa at a consulate abroad due to the inadmissibility bar. 

It is not my intention to overstay my visa or to be unlawfully present in the U.S. I have come to study in the U.S. in order to gain a higher education in America’s universities, and to supplement my education through hands-on work experience. My intention is to do so by complying with the relevant immigration regulations and policies. However, when those policies are not always clear, and my studies or work experience are being endorsed by the school’s DSO, I feel I should not be penalized retroactively when I have acted in good faith and am informed later that there was a problem with my maintenance of status. I would advocate for the continuation of the current calculation of accrual of unlawful presence for F-1 individuals, which would allow for clear notice to the F-1 student concerning a failure to maintain proper status, a clear start date for the accrual of unlawful presence, and application of a re-entry bar only after remaining in the U.S. for a significant period beyond that notice. This calculation is equitable and avoids disproportionately penalizing students who have acted in good faith, and would allow us an opportunity to remedy our visa status once we become aware of the problem by being able to depart the U.S. as soon as we become aware that unlawful presence has begun to accrue. 

I urge against the implementation of this proposed policy memo. Thank you for your consideration, time, and support in this matter. 

Sincerely,

[Name]

(Draft for Employers to Comment)

E-mail to: publicengagementfeedback@uscis.dhs.gov

Subject:    Comments on Proposed Policy Memo “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602-1060)

Dear Director:

I would like to submit the following comments in response to the USCIS Proposed Policy Memo “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602—1060), posted on May 11, 2018.

I am the [job title] of a [type of business] company whose employees include recently-graduated international students who are in the U.S. on an F-1 visa and are working based on their Optional Practical Training (OPT). Our company has employed these graduates during their OPT period, provided them with training, and recently applied for these employees’ H-1B work visa during the cap-subject application period in April.

Our concern with the proposed memorandum is that our F-1 employees’ ability to obtain a nonimmigrant visa from a consulate may be jeopardized by the new calculation of accrual of unlawful presence. By essentially equating unlawful presence with failure to maintain proper status, the policy memo puts an undue burden on F-1 students and penalizes them retroactively. The new calculation would render F-1 students unlawfully present dating back to the day after their failure to maintain F-1 status began, rather than from the day of an adverse decision by DHS or an immigration judge.

This is an undue burden and disproportionate penalty on the F-1 students, and on our company as their employer, because the policies for maintaining proper F-1 status have not always been made uniformly clear to the students, their employers, and even to the DSOs. F-1 students rely heavily on their school’s DSO in order to maintain valid status, as the DSO issues them I-20s, endorses them for work authorization, and updates their records in the SEVIS system. F-1 students may have engaged in certain employment activities with the full endorsement of their school’s DSO, and issuance of an Employment Authorization Document by DHS, only to discover later that the initial grant of work authorization was improper.

These inconsistencies are sometimes due to DSO error but are also due to DHS interpretations that may change without warning and get applied retroactively, to the students’ and their employers’ detriment. Updates to USCIS interpretation of employer-employee relationships, for example, may retroactively invalidate a work arrangement in place during a student’s OPT period. The proposed policy memo would result in the student accruing unlawful presence retroactively, during a period of time when USCIS policy was different or unclear.

Furthermore, the extensive processing times for an H-1B change of status petitions, combined with the suspension of premium processing for cap-subject H-1B applications, puts these students at risk of having accrued unlawful presence for more than six months by the time USCIS has adjudicated the application and made a determination on the status issue. The extensive service center backlogs, suspension of premium processing, and sudden change in unlawful presence interpretation are all beyond the control of the F-1 students and their employers. Under this memo, students may be determined to have unknowingly accrued several months of unlawful presence, and a possible 3- or 10-year bar against re-entry, without having possessed the intent to do so, and without any means to remedy their situation once they become aware of it.

The accrual of unlawful presence calculation is currently linked to an adverse determination by DHS or an immigration judge (or by the expiration of an I-94) because such a determination actively puts the student on notice that he or she was no longer authorized to stay and/or work in the U.S., and should depart immediately. The calculation under this proposed memo will put students in a position to have possibly accrued several months of unlawful presence unknowingly. It is further exacerbated by the fact that their accrual of unlawful presence may have been endorsed by their school’s DSO, the main immigration-related official that most of the students have any contact with and on whom they rely. The application of the proposed memo will unfairly penalize students who have acted in good faith, who timely applied for work authorization that was made available to them, and acted according to the policies in effect at the time. It will affect their ability to apply for any other nonimmigrant visa in the U.S., as well as prevent them from applying for a visa at a consulate abroad due to the inadmissibility bar.

As an employer of these recent graduates, the implementation of this memo will also adversely affect our business, as we have invested in training them during their OPT period and have sponsored them for their H-1B visa. Our company likewise acted in good faith in employing them pursuant to their Employment Authorization Documents, in training them, and in seeking to employ them further so that they can contribute to our business. Our investment in these students may be lost with the implementation of this memo if they can be found retroactively unlawfully present, with a possible years-long bar against re-entry.

We would advocate for the continuation of the current calculation of accrual of unlawful presence for F-1 individuals, which would allow for clear notice to the F-1 student concerning a failure to maintain proper status, a clear start date for the accrual of unlawful presence, and only penalizes them with a re-entry bar if they knowingly remain in the U.S. for a significant period beyond that notice. This calculation is equitable and avoids disproportionately penalizing students and their employers who have acted in good faith, and allows the students an opportunity to remedy their visa status once they become aware of the problem.

We urge against the implementation of this proposed policy memo. Thank you for your consideration, time, and support in this matter.

Sincerely,

 

[Name]

[Title]

[Company]

By Rahul Reddy and Rebecca Chen

  

Rahul is the founding partner of Reddy Neumann Brown PC His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries.

Rebecca is a partner at Reddy & Neumman and has been with the firm since 2009. Her practice includes non-immigrant and immigrant visa petitions and consular processing.