The change in policy on determination of unlawful presence for foreign students will have an impact on the H-1B cap season. The August 9, 2018 USCIS Policy Memorandum results in the accrual of unlawful presence depending on the date of the status violation. Previously, foreign students did not accrue unlawful presence except in limited circumstances. The exact implications of the Policy Memo are yet unknown as of the day of this article as the earliest possible 180-day mark for the 3-year bar will not be reached until February 5, 2019. The unlawful presence bar would require a student to leave the U.S. for the inadmissibility to be triggered. However, upon a change of status request, such as with an application for cap-subject H-1B, USCIS may review an F-1’s lawful status deeper to determine whether lawful status has been maintained.
Considerations for this H-1B cap season:
student must maintain a full course of study to remain in lawful F-1 status. Review
a student’s academic course load to ensure that the student has remained within
the full course of study parameters. A full course of study can have various
meanings. Particular attention should be given to English as a Second Language
(ESL) school clock hours, online classes, reduced course load, and practical
that OPT and STEM OPT students are complying with reporting requirements. OPT
students are required to report any change of name or address or interruption
of employment to the Designated School Officer (DSO). STEM OPT students have
additional reporting requirements, including six-month validation reports,
self-evaluations, and material changes to the Form I-983 Training Plan.
the F-1 students’ employment records to confirm they are not exceeding
unemployment maximums on OPT or STEM OPT.
day the student fails to maintain status may be determined by a Department of
Homeland Security Officer. Officers consider information in systems available
to USCIS, information contained in the foreign national’s record, and
information obtained in a Request for Evidence or Notice of Intent to Deny. The
foreign national must now become a meticulous record keeper of his or her
admission record and maintenance of status history to ensure compliance with
an F-1 student has violated status, he or she may apply for reinstatement of
status within five months. Previously, an F-1 student may discover he or she is
out of status after notification from his or her DSO of termination from SEVIS,
the web-based system that the Department of Homeland Security uses to maintain
information regarding students and other non-immigrants. The Policy Memo states
that the student begins accruing unlawful presence the day after an
unauthorized activity. Unlawful presence, therefore, may accrue before the
student or even the DSO is aware the student has failed to maintain status. The
five-month calculation start date on reinstatement allows the F-1 student to
toll time in unlawful presence until the petition for reinstatement is
adjudicated. If an F-1 student cannot determine the date from which the
five-month period is calculated, he or she will not know whether the time
during which the reinstatement application is pending is tolled, opening the
student to the ramifications of unlawful presence.
It is more important than ever before to conduct a careful review of the F-1 student’s record to ensure maintenance of status before change of status, extension of status or any other immigration benefit is sought.
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