University of Iowa

Accruing Unlawful Presence for F, M, and J Students and Scholars

USCIS Proposal on Accruing Unlawful Presence and Potential Restrictions to Returning to the U.S.

For international students, scholars, and dependents holding F, M, or J status at the University of Iowa

 

Updated August 21, 2018
by International Student and Scholar Services
University of Iowa

 

On August 9, 2018, a new rule was put in place by the Department of Homeland Security (DHS), regarding what is called “unlawful presence” on the part of those holding F, J, or M visas/status as well as their dependents.  Very basically, it means that DHS will begin counting and tracking “unlawful presence” if anyone with F, J, or M status does anything, intentionally or unintentionally, to violate the terms of their status or to “lose” their legal status.  This has the potential to then lead to “bars,” or restrictions, on returning to the U.S. in any manner for three years, ten years, or even permanently.

As this can carry some serious issues for international students, scholars, and their dependents, ISSS will attempt to answer what we know about the proposal, give examples of the common situations that may occur to cause a student/scholar to lose status, and provide information on how to submit comments to the Department of Homeland Security during the open comment period.

The final Policy Memorandum, posted August 9, 2018, may be read here:  https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf   Guidance from NAFSA: Association of International Educators is also available online.

Technically this rule is not new – the possibility of being barred from the U.S. for 3 or 10 years has existed since the 1990’s, but we traditionally had not seen this commonly applied to those here on international student or scholar visas.  And a major difference is that under the “old” rule, you did not begin to accrue unlawful presence until officially found to be in violation, such as by an immigration judge or USCIS.  The new proposal has the unlawful presence “clock” begin immediately.

A note about language used:  Some of the specific rule text below is copied directly from the Department of Homeland Security memo linked above.  Some of that language makes frequent use of the term “alien,” which should be read as meaning those in the U.S. who do not hold U.S. citizenship and require some manner of authorization to be present, such as having a green card, being on an F-1 visa, etc.  Whether or not ISSS finds the language agreeable we will frequently copy the direct text to ensure the rules are clearly stated as DHS wrote them.

 

Contents

  • What is the new rule?
  • What can happen if an individual does accrue unlawful presence?
  • What are examples of ways a student might lost legal status?
  • What can I do to avoid losing my legal status? (students)
  • What can I do to avoid losing my legal status? (scholars)
  • What things are OK and will not count toward unlawful presence?
  • What about F-2 and J-2 dependents?
  • What potential problems does ISSS see or what is not yet clear?
  • Submitting comments to the Department of Homeland Security

 

What is the new rule?

It makes a difference when the F/J/M individual first failed to maintain legal status:

If status was lost before August 9, 2018, individuals start accruing unlawful presence based on that failure on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) ordered the alien excluded, deported, or removed (whether or not the decision is appealed).

 

If status is lost on or after August 9, 2018 an F, J, or M nonimmigrant begins accruing unlawful presence, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

 

What can happen if an individual does accrue unlawful presence?

It is possible that an individual will be restricted from entering the U.S. for three years, ten years, or even permanently:

"Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.  Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief."

 

What are examples of ways a student might lose legal status?

These are the most common situations where we see students lose their legal status, but is by no means an exhaustive list:

 

  • Students academically dismissed after a semester ends, who do not either transfer to a new US school in a timely way or who do not leave the US by the deadline provided by ISSS.
    • How to avoid this?  Students know when they are not doing well academically.  Students are almost always given at least one semester on academic probation to improve grades.  If you have not been doing well, or more obviously, you are not going to your classes, you can expect you will have a low GPA at the end of the semester and may then be academically dismissed for one year.  Don’t take the common approach and just try to avoid your email, so you won’t have to see the notices from your college and ISSS about this – that excuse won’t save your status.  Prepare ahead of time, and either plan to leave the U.S. within the deadline provided by ISSS, or apply and transfer to another school in the U.S. such as Kirkwood Community College, where you can continue your studies for the year and even transfer some credit back to your UI degree program.  Ignoring/avoiding is going to get you in a lot more trouble than ever before.
  • Students who fail to report/update the local residential address in MyUI (this prevents ISSS from submitting a required report to SEVIS that you are registered each fall/spring, and eventually leads to automated termination of the SEVIS record.
    • How to avoid this?
      • Check MyUI to see what your current address is and make sure it is your current U.S. address (no departmental addresses, no post office box addresses).  Those who live in campus residence halls should be aware that when the semester ends and you move out, UI Housing converts your residence hall address back to the last address entered there, which is often your address in your home country.  You need to be proactive to get this information updated quickly.
      • iHawk will often send an alert email to students IF it detects that you do not have a valid U.S. address listed in MyUI.  This alert does not always work depending on certain situations, so you should not rely only on this – the only way to be sure is to log in to MyUI.  But if you are getting an email alert that says, “Immigration Record Error!” DO NOT IGNORE IT and contact ISSS immediately.  The number of students who ignore this is astounding, and some have ended up losing their status because they ignored or took too long to respond so they could fix the problem.  The iHawk system keeps a record of every week that alert goes out, so we sometimes can see that some students have received the alert weekly for several months.  Yet still ignored it.  Don’t.
  • Students who enroll below full-time without the legally required ISSS approval and do not fix the issue by the deadline provided by ISSS
    • How to avoid this?  First of all, be aware of the total number of semester hours you are enrolled in.  You know undergrad students must take 12 s.h., grad/professional students take 9 s.h.  There may be some exceptions, and those are defined on this website.
    • There are various email alerts that exist for this, but they will look something like “Alert: F-1 Undergraduate Under-Enrolled.”  Please read these and follow the instructions.  There may also be alerts that deal with online courses, since there are restrictions on the number of online courses that can count toward full-time enrollment.  Again, this alert filter is not perfect due to the way some courses are reflected in the MyUI system.  And sometimes they are sent to students who really should not have received the alert.  ALWAYS CONTACT ISSS TO BE SURE.  If there was an error and the alert does not apply to you, we’ll be able to quickly see this.  But DO NOT IGNORE IT.
  • Students who do not extend an expiring I-20 or DS-2019 before the end date
    • How to avoid this?  Be aware of your document end date.
    • The iHawk system will send an email alert in many cases when it detects an I-20 or DS-2019 end date for a current semester.  We are increasing the number of alerts to three, with the first one coming approximately 90 days before the document expires.
  • Students who voluntarily withdraw while a semester is in session but who do not leave the US by the established deadline (15 days)
    • How to avoid this?  Leave the U.S. within 15 days of withdrawing.  No exceptions.  Don’t try to say you could not get an airline ticket out in time, as that is not going to save you from being out of status.
  • Students who are withdrawn by the school for misconduct or other violations and do not leave the US
    • How to avoid this?  Leave the U.S. by the deadline the university instructs you.
  • Students who work without required authorization
    • How to avoid this?  Do not work without authorization.  This most commonly applies to off-campus jobs.  Working in a restaurant, a bubble tea shop, for a friend’s business, etc. are not acceptable.  The only way you know you are working legally if you are employed by someone other than the University of Iowa is if you have authorization from ISSS for CPT or OPT (for F-1 students) or Academic Training (for J-1 students).
  • Students who graduate, or who complete a period of post-graduation OPT or Academic Training, and then do not leave the US by the established deadline, transfer to a new school/program, or change to another immigration status in a timely way (F-1 students get a grace period of 60 days following graduation or the end of OPT; J-1 students get a grace period of 30 days following graduation or the end of Academic Training)
    • How to avoid this?  Leave by the established deadline.

 

What can I do to avoid losing my legal status? (students)

First let us be very clear – it is rarely difficult to avoid losing your F/M/J status.  There is also only so much the international office or other university staff can do to help you protect your status – you as the student or scholar MUST take responsibility for ensuring you follow the rules of your immigration status.  As the prior list of examples shows, do not let yourself end up in those situations in the first place!  THAT is your best defense against losing your legal status.  You should also:

  • Read your emails from the UI and from ISSS!  Many students receive email alerts from ISSS and do not read them or disregard them.  If you see an email and you think it is in error, do not just ignore it – check with ISSS!
  • Be aware of your own immigration situation.  While ISSS strives to make the best use of technology available to us to help automated reminders go out in a number of circumstances, it is not possible to create reminders for all situations.  And sometimes technology fails.  These automated reminders are a courtesy we provide, but in the end the law holds you responsible for your own status.  This is why you must remain on top of your own immigration situation – be aware of when your I-20 or DS-2019 expires, keep your US address updated, make sure you are enrolled full-time or have authorization from ISSS to drop below – i.e. makes sure you are following the next section:
  • Remember the very basic immigration requirements you must follow: 
    • Register full-time (12 hours for undergrads, 9 hours for grad/professional students, or be authorized by ISSS for part-time)
    • Keep your US address up to date in MyUI within 10 days of any change
    • Do not work illegally
    • Get an updated travel signature every year (or every 6 months while on OPT) if you need to travel outside the U.S.
    • Follow deadlines - If ISSS gives you a deadline by which you need to do something, follow it!  It could very well mean losing your legal status if you do not meet certain deadlines.
    • Attend class and strive to do well academically!  This does not mean you have to get all A grades, but too many students do not attend class at all, or do so sporadically, and then eventually receive grades of D or F. 
      • If you are here on a student visa, the law expects you to attend your classes – skipping or missing too many classes is a reason by itself that you could potentially lose your status.
      • Too many low grades will impact your grade point average, which can cause you to drop below the required minimum gpa of your program.  If this happens, you may be put on warning and given the chance to raise your gpa.  Failure to do so will likely result in being dismissed from the University of Iowa for one full year, which means you either must leave the US or transfer to another US school – you cannot just hang out in the US and not attend school.
    • Do not under any circumstances engage in academic misconduct – this may lead you to be dismissed or expelled at any point, including while a semester is in session or after/between semesters, which will impact your immigration status.  Examples of misconduct include but are not limited to turning in or copying others’ work on assignments, looking at someone else’s test, paying for someone else to write papers for you, hiring someone else to take online classes for you, and purchasing forged medical letters online to be used for part-time/withdrawal purposes.
  • If you lose your legal F/M/J status for any reason, speak to an ISSS advisor IMMEDIATELY so that we can help you assess your situation and whether or not you qualify for reinstatement!
  • The role of mental health and loss of status - When students experience mental health challenges, such as depression, "normal" daily activity can be disrupted.  A student may not want or be able to get up and go to class, ends up missing most classes for the semester, which could then lead to a failing grade and impact the overall gpa.  That can then impact the ability to remain enrolled at the University of Iowa, as well as the immigration status.  Reading emails, as well as following through with any requests or directives from university staff or faculty, can also be impacted.  Other students fear what friends from the same country/culture will do or say about them if they learn they are experiencing mental health issues, which can contribute to avoiding seeking help.
    • ISSS can't stress enough to please seek helpUniversity Counseling Services provides free meetings and support to students. Although the concept of talking to a counselor or therapist is still not the norm in many students' cultures, taking this step has helped countless international students over the years.  Students can also reach out to ISSS staff, and we can help you connect with them if you are hesitant or scared to do so on your own.
    • There may be options available to drop some classes or even take a semester off if you are experiencing mental illness.  This does require you to be seeing a professional provider in the area (not just a one-time visit to get a letter) who has either an MD or DO degree, or is a licensed psychologist.  ISSS can provide you with more information on how this works. 
  • A word about parents – ISSS fully understands the role parents often play and that the thought of telling parents news that might upset, anger, or disappoint them can be scary.  No student looks forward to telling a parent you are going to be academically dismissed and may have to return home for a year.  In the past sometimes this anxiety of giving parents bad news even contributed to students avoiding dealing with immigration problems, even to the extent of staying in the U.S. and pretending to still be attending school, which makes the problems grow even worse.  With this new rule in place the consequences of avoiding parents will be very serious, so imagine having to tell your parents you cannot come back to the U.S. at all for three or ten years, or perhaps ever – be honest, deal with your problems immediately, and absolutely do not attempt to “hide” your immigration/status problems by hanging out in the U.S. without legal status in the hopes your parents might not find out.

 

What can I do to avoid losing my legal status? (scholars)

  • Do not change the research, teaching, or observation objectives as it appears on the DS-2019 – for example, if you are here to do research in biochemistry, you cannot shift to doing work that is different than what is listed on the DS-2019.
  • Be sure you report changes in your U.S. residential address within 10 days any time you move.
  • Maintain University of Iowa health insurance for you and any J-2 dependents for the entire duration of your DS-2019.
  • Do not leave the U.S. for a period of more than 30 days without advance approval from ISSS.  J-2 dependents should not be left in the U.S. for more than 30 days if the J-1 is not present.
  • Do not engage in any employment, paid or unpaid, that is not with the department listed on your DS-2019, without prior approval from ISSS first.
  • Notify ISSS if your University of Iowa work ends earlier than the date listed on your DS-2019.

 

What things are OK and will not count toward unlawful presence?

The Department of Homeland Security includes the following examples of lawful situations that do not count toward unlawful presence:

F-1 students generally do not accrue unlawful presence in certain situations, including but not limited to:

  • During the period of up to 30 days before the program start date listed on the form I-20;
  • While the F-1 is pursuing a full course of study at an educational institution approved by DHS for attendance by foreign students, and any additional periods of authorized pre- or post-completion practical training, including authorized periods of unemployment (example:  up to 90 days of unemployment while on OPT);
  • During a change in educational levels (example: bachelor’s to master’s, or master’s to PhD) provided the F-1 transitions to the new educational level according to transfer procedures outlined in 8 CFR 214.2(f)(8);
  • While the F-1 nonimmigrant is in an approved cap-gap period between OPT and an H-1B effective October 1;
  • While the F-1 nonimmigrant’s application for post-completion Optional Practical Training (OPT) remains pending;
  • While the F-1 nonimmigrant is pursuing a school transfer provided that he or she has maintained status as provided in 8 CFR 214.2(f)(8);
  • The period of time an F-1 was out of status if he or she applies for reinstatement in a timely way, under 8 CFR 214.2(f)(16), provided that the application is ultimately approved;
    • Filing a reinstatement application means doing so within 5 months of the date status was lost.  Students who have been out of status more than 5 months may be at risk for having the reinstatement application denied, and should consult with an ISSS advisor regarding their best options, which may include referral to a competent immigration attorney.
  •  During annual vacation (summer break) if the F-1 is eligible and intends to register for the next term;
  • During any additional grace period as permitted under 8 CFR 214.2(f)(5)(iv) to prepare for departure:
    • 60 days following completion of a course of study or any authorized practical training (OPT);
    • 15 days if the designated school official (DSO) authorized the withdrawal from classes (SEVIS termination reason: authorized early withdrawal); or
    • No grace period if the F-1 nonimmigrant failed to maintain a full course of study without the approval of the DSO or otherwise failed to maintain status).
  • During a period of reduced course load, as authorized by ISSS

 

J-1 students and scholars generally do not accrue unlawful presence in certain situations, including but not limited to:

  • The period of time annotated on Form DS-2019 as the approved program time plus any grace period, either before the program start date (up to 30 days) or after the conclusion of the program (up to 30 days);
  • Any extension of program time annotated on Form DS-2019;
  • While the J-1 nonimmigrant is in a cap gap period as outlined in 8 CFR 214.2(j)(1)(vi). (This is a discretionary provision in which the USCIS Director may, by notice in the Federal Register, bridge the gap for J-1 nonimmigrants.)  
  • The period of time a J-1 nonimmigrant was out of status, if he or she is granted reinstatement under 22 CFR 62.45.

 

M-1 students generally do not accrue unlawful presence in certain situations, including but not limited to:

  • The period of admission as indicated on Form I-94, plus up to 30 days before the report or start date of the course of study listed on the Form I-20;
  • Any authorized grace period as outlined in 8 CFR 214.2(m)(5); and
  • During the time the M-1 nonimmigrant completes authorized practical training as outlined in 8 CFR 214.2(m)(14).
  • The period of time a timely-filed reinstatement application is pending and ultimately approved.

 

What about F-2 and J-2 dependents?

  • F-2 and J-2 dependents (the spouse and children under 21 of an F-1 or J-1) rely upon the F-1/J-1 maintaining their legal status.  If the F-1 or J-1 loses legal status, so do the dependents.
  • Note that dependents under 18 do not typically accrue unlawful presence.

 

What potential problems does ISSS see or what is not yet clear?

ISSS has questions remaining that are not addressed in the current memorandum or guidance.  We will attempt to get answers on the following topics (also see the section below for the comments submitted by ISSS):

  • 90 days of unemployment while on OPT – Students engaged in the 12-month period of OPT may accumulate no more than 90 days of total unemployment time.  However, currently the SEVIS system does not take steps to automatically terminate the records of those who reach 90 days, although the regulatory guidance indicates those students should consider their status to be ended and leave the U.S.  How will this be implemented, and how will students and DSO’s know it has happened?
  • I-515 – Students who travel outside the U.S. without an updated signature may be given the I-515 upon entering, which must be submitted to Customers and Border Protection within 30 days of entering the U.S.  What happens to those students who do not submit the form in time?  Will unlawful presence begin to accrue?  Will anything happen to the SEVIS record?
  • Transfer of I-20 – Schools are told they cannot refuse to transfer the SEVIS record even when it is in terminated status.  Will this practice continue?  Or should schools advise any student who has lost status but who wants to transfer to leave the U.S. in order to avoid accumulating unlawful presence?
  • How do DSO’s (international student advisors)/students know how many days have accrued, and whether a bar is put in place?

 

Submitting comments to the Department of Homeland Security

Below are the specific ISSS comments submitted by Senior Associate Director, Lee Seedorff:

  • Unemployment while on OPT - Students engaged in the 12-month period of OPT may accumulate no more than 90 days of total unemployment time.  However, currently the SEVIS system does not take steps to automatically terminate the records of those who reach 90 days, although the regulatory guidance indicates those students should consider their status to be ended and leave the U.S.  How will this be implemented in SEVIS?
  • I-515 – Students who travel outside the U.S. without an updated signature may be given the I-515 upon entering, which must be submitted to Customers and Border Protection within 30 days of entering the U.S.  What happens to those students who do not submit the form in time?  Will unlawful presence begin to accrue?  Will anything happen to the SEVIS record to show the record is now terminated?
  • Transfer of I-20 – Schools are told they cannot refuse to transfer the SEVIS record even when it is in terminated status.  Will this practice continue?  Or should schools advise any student who has lost status but who wants to transfer to leave the U.S. in order to avoid accumulating unlawful presence?
  • Clarity on Unlawful Presence and Bars – How will students/scholars and their DSO/ARO advisors know when/if unlawful presence has specifically begun to accrue, how much has accrued, and whether a bar is put in place?  This information is crucial for universities in planning and advising purposes.  Will this be reflected in SEVIS?
  • Errors in SEVIS – The recent release of the SEVIS portal for OPT STEM reporting, which permits students to directly enter information into SEVIS instead of traditionally going through the DSO, has already led to some errors where the system did not appropriately save information uploaded.  Students may or may not be able to successfully resolve these issues on their own.  They also may become confused and submit incorrect information to the system.  Further future efforts to create more direct student-SEVIS interactions, thereby removing the important oversight of the DSO, will lead to further data problems and potentially incorrect information being reported, which may then compromise a student’s status and impact unlawful presence accrual.
  • Errors at the Port of Entry – We still see errors made at Ports of Entry, with incorrect status (ex. B2 instead of F1) being entered in the arrival record, or expiration dates inappropriately being applied to F and J records instead of D/S (these are not I-515 cases).  When brought to our attention by the students, we are able to work with CBP to fix the data errors, but otherwise have no idea an error was made.  Students may be unaware/not understand there is a problem and that their status may be lost and unlawful presence begin to accrue.
  • Excessive Reinstatement and Change of Status Processing Times – Reinstatement and changes of status typically take several months to be reviewed and adjudicated, plus the change of status now carries new rules about maintaining the prior status until the new one is approved.  If a student files for reinstatement or change of status in good faith and in a timely way, but several months pass before a decision is made, students who receive a denial may have already reached the point where they have reached 180 days and potentially be eligible to have a bar applied to them.  If the unlawful presence policy is put in place, corresponding service improvements must first be made within the adjudication centers so that students who apply for benefits in a timely way are not caught in delays beyond their control.
  • Excessive Punishment for Minor Infractions – The majority of students we see fall out of status do so for relatively minor reasons.  While one may argue that the rules are the rules, a reasonable approach must also be taken considering most of these students are 18-19 years old and still learning to operate independently, despite the considerable assistance, guidance, and reminders our university provides.  In some cases mental health plays a role in hindering a student’s ability to deal with issues in a timely way.  Most students we see lose status do so for the following reasons; in my view these reasons are not all equal in level of seriousness of the violation, and therefore consideration should be given to defining “minor infractions” and preventing them from having lasting impact/counting toward a bar:
    • Failure to report/update US residential address in a timely way
    • Enroll below full-time without authorization
    • Forget to extend the I-20 or DS-2019 on time
    • Work without authorization
    • Graduate or complete authorized period of OPT/Academic Training then do not leave by the end of the established grace period.