Unlawful Presence Rule
USCIS Policy Creates Much Stricter Penalties for Violations of U.S. Immigration Regulations
On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) released new policy changing when individuals present in the U.S. as international students (Fs) or exchange visitors (Js) begin to accrue unlawful presence. In the past, Fs and Js did not begin accruing unlawful presence until either USCIS formally found that the individual had violated their nonimmigrant status while adjudicating a request for another immigration benefit or an immigration judge ordered the individual deported. Under the new policy, individuals in F or J status will begin to accrue unlawful presence the day after they stop pursuing their course of study or authorized activity, the day after they engage in an unauthorized activity, or the day after completing their course of study or program (including any authorized practical training and any authorized grace period). Summer and winter breaks are an allowed and are not counted towards unlawful presence.
This change is significant as it could affect students’ and exchange visitors’ eligibility to change to a different nonimmigrant status, seek permanent resident status, and/or return to the United States if they travel abroad after accruing a certain number of days of unlawful presence.
When an international F1 or J1 student or J1 scholar (or their dependent) violates immigration regulations, the number of days from the time they violate their status will be counted, called “unlawful presence.”
- If you accumulate 180 days of “unlawful presence,” you can be barred from the U.S. for 3 years.
- If you accumulate 1 year of “unlawful presence,” you can be barred from the U.S. for 10 years.
The days will start to be counted from August 9, 2018 if it is a newly discovered violation that started in the past.
- The days will start on the date the violation starts if it is on or after August 9, 2018.
- If it was a previously discovered violation and you were previously accruing unlawful presence, that accrual will continue.
To maintain legal status in the U.S., F1 and J1 students must follow the regulations below. It is your responsibility to maintain your legal status while in the United States.
- Always enroll FULL-TIME (undergraduates at least 12 credit hours; graduates defined by your degree program.)
- If you drop below full time or take a leave of absence, get authorization from the McCulloch Center BEFORE you drop below full time or take a leave of absence even if you have spoken to your academic dean or advisor.
- BEFORE the end date on your I-20 or DS-2019, apply for an extension at the McCulloch Center if you need more time.
- When you graduate and are on F1 OPT or F1 STEM OPT, be sure to complete ALL the required reporting ON TIME—it is your responsibility for the proper reporting.
- If you remain in the US over the summer or any breaks, you must report your physical address to the McCulloch Center.
- Keep your PASSPORT VALID. Contact your embassy to renew your passport well BEFORE the expiration date. Your passport must always be valid for 6 months into the future.
- Be sure to carry your required documents (passport, visa document form) when traveling and re-entering the U.S. as well as when you travel inside the U.S.
- NEVER work on campus for more than 20 hours per week while you are registered except during the summer months when you are allowed to work more than 20 hours per week.
- NEVER work off-campus without PRIOR authorization. Always discuss off-campus work authorization at the McCulloch Center before you start working off-campus as there are very limited options for this.
- Contact the McCulloch Center BEFORE you finish at MHC if you plan to TRANSFER to another school in order to complete the appropriate immigration procedures BEFORE the end of your grace period (60 days for F; 30 days for J).
- Comply with all other U.S. federal and state laws, such as never driving while intoxicated, never carrying a weapon and obeying all federal drug laws.
- Comply with all MHC academic and conduct policies.
Immigration regulations may change during your studies. Make sure to read emails the McCulloch Center sends you. We will send messages to your MHC email.
Contact the McCulloch Center if you think you may have violated your immigration status. We may advise you to speak with an immigration attorney.
There are many things we can do to help you navigate a status violation once we are aware it has happened; however, there are problems we will not be able to solve if you accrue too much “unlawful presence” time and are subject to enforcement.
If you observe the regulations listed above, you have no reason to be concerned about this new policy.