Unlawful Presence: New USCIS Guidance for Students and Exchange Visitors

On August 9, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued finalized policy guidance on unlawful presence for students and exchange visitors, which revised previous guidance issued on May 10, 2018.

OIS has been closely monitoring this development.  Unfortunately, it is still unclear exactly how this guidance is being interpreted by USCIS, as well as other immigration agencies such as the Student and Exchange Visitor Program office (manages SEVIS), Immigration and Customs Enforcement (interior enforcement), and Customs and Border Protection (control of entry to U.S.).  The Department of State has issued some clarifying guidance for the purposes of visa adjudication.  In addition, a lawsuit was filed in October 2018 challenging the legality of this new interpretation.  While the lawsuit waits for its court date, the new policy remains in effect, and it is important to consider when advising students.

New Unlawful Presence Policy Guidance for F, M, and J students and scholars:

The new guidance makes significant changes to the way in which unlawful presence is calculated and accrued for F-1 students and J-1 exchange visitors. If you have engaged in unauthorized employment or otherwise violated your status, USCIS may decide that you began to accrue unlawful presence the day after that violation of status.  Depending on how much unlawful presence you accrue, you may be subject to a 3-year or 10-year bar on returning to the U.S. once you have departed. This also applies to your F-2 and J-2 dependents.

What is “unlawful presence” and why is it important?

Unlawful presence is defined as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled. Unlawful presence may have severe negative consequences for any future U.S. visa applications or attempts to adjust status to permanent residency, depending on how much unlawful presence was accrued before departing the United States.

Penalties for unlawful presence are determined by duration: unlawful presence of 180-364 days can result in a 3-year bar; 365+ days can result in a 10-year bar. Individuals who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible. Waivers are rare.

Key elements of the revised policy are:

Students and Exchange Visitors who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on August 9, 2018 based on that failure unless they had already started accruing unlawful presence on the earliest of any of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after their I-94 expired (if not admitted for duration of status); or
• The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

Students and Exchange Visitors who fail to maintain their status on or after August 9, 2018, begin 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,
• The day after their I-94 expired (if not admitted for duration of status); or
• The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

What if I’ve filed for reinstatement?

F nonimmigrants who timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending. (A “timely filing” is defined as when the student has not been out of status for more than five months at the time of filing.)

(Note that reinstatements for J-1 Exchange Visitors are handled by the U.S. Department of State, not USCIS.)  An F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status. However, if the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.

How this impacts NC State:

Previously, Students and Exchange visitors did not accrue unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation. That is no longer the case.  It is more important than ever that you be responsible about maintaining your lawful immigration status.

If you have questions about the memo’s effective date and applicability to your individual situation, contact an OIS advisor or an experienced immigration attorney.

The following is an update to a previous post about the Travel Ban.

Students and Scholars –

On June 26, 2018 the U.S. Supreme Court upheld Presidential Proclamation 9645, issued by the Trump Administration on September 24, 2017. That proclamation (amended on April 10, 2018 to remove Chad) announced travel restrictions on certain nationals of Iran, Libya, North Korea, Somalia, Syria, Yemen, and Venezuela. These restrictions replace a central portion of its earlier travel ban, Executive Order 13780, and vary by country. The State Department has been processing visa requests in accordance with the Presidential Proclamation since December 8, 2017.

How this Presidential Proclamation Impacts NC State:

There is no change on travel guidance to our international campus community. Due to the continuing uncertainty regarding the travel ban we still recommend that impacted individuals refrain from international travel if at all possible.

If you need to travel internationally, please make an appointment with an advisor at OIS so that we can advise you on what documentation to travel with and what to do should you encounter difficulty in getting a visa in time to return for classes or if you encounter difficulty at the Port of Entry.

Please also note:

• The Department of State has issued guidance and an FAQ regarding the visa processing under the Presidential Proclamation, including information and statistics related to possible waivers.
• The Department of Homeland Security, or “DHS” (which governs Customs and Border Protection) has also issued an FAQ regarding implementation.
• All international travelers who are citizens of the impacted countries of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen should continue to expect delays during visa appointments and at ports of entry. Consular officers abroad and CBP at all ports of entry will now have to make additional decisions regarding who to admit into the U.S., which will undoubtedly cause additional delays.   
• As always, Customs and Border Protection (CBP) will continue to determine, on a case-by-case basis, whether the individual is admissible to the U.S.  It is possible that CBP will decide to re-review the grounds on which an individual qualified for an exception or waiver, even if the person already met this burden and obtained an entry visa at a U.S. consulate or embassy overseas. If travel is necessary, we strongly recommend that individuals from any of the affected countries carry extensive documentation showing their eligibility for the relevant waiver or exception.  Please work closely with OIS if you must travel to prepare this documentation.
• The Presidential Proclamation also authorizes the DHS and DOS to grant discretionary waivers of the entry ban where the denial of entry would cause hardship and the foreign national’s entry is in the national interest and entry would not pose a threat to national security. There is no separate application for a waiver. You should disclose during your visa interview any information that might demonstrate that you may be eligible for a waiver.  Note that waiver criteria are stringent and the review process may add significantly to visa processing time.

The Office of International Services, International Employment, and the Office of General Counsel are closely monitoring the government’s implementation of the Executive Order, Presidential Proclamation and related court decision(s), and will provide further information as developments occur. 

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No visas will be revoked as a result of the Presidential Proclamation (P.P.). Individuals from any of the affected countries who are currently outside the U.S. and need a visa to enter may qualify for an exception or waiver and should disclose that information during the visa interview. Nationals from any of the affected countries will not be subject to any travel restrictions listed in the Presidential Proclamation if they fall into one of the following categories:

• • Was in the United States on the applicable effective date of the P.P. for that national:
    • September 24, 2017:  for nationals of Iran, Libya, Syria, Yemen, and Somalia who were subject to the prior 90-day entry ban of Executive Order 13780, because they “lack credible claim of a bona fide relationship with a person or entity in the United States.”
    • October 18, 2017 for:
      • 1) nationals of Chad (until April 13, 2018, when Chad was removed from the list), North Korea and Venezuela, and
      • 2) nationals of Iran, Libya, Somalia, Syria and Yemen who have a “credible claim of a bona fide relationship with a person or entity in the United States.”
  • Had a valid visa on the applicable effective date of the P.P. for that national;
  • Had a visa which was revoked or marked canceled as a result of Executive Order 13769 (the first ‘travel ban’ order);
  • U.S. lawful permanent resident (green card holder);
  • Was admitted to or paroled into the United States on or after the applicable effective date of the P.P for that national;
  • Applicant for adjustment of status with valid advance parole;
  • Dual national traveling on a passport from a non-restricted country; 
  • Holder of certain diplomatic or diplomatic-type visas;
  • Was granted asylum in the United States; or admitted as a refugee.

On March 23, 2018, the Student and Exchange Visitor Program (SEVP) launched the SEVP Portal. The portal is a tool that F-1 students on OPT/STEM OPT can use to report changes to their home/mailing address, telephone number and employer information.  The portal is accessible from both mobile devices and computers.

When and How Do OPT Students Gain Access to the Portal?

The SEVP Portal is only be accessible to students whose OPT has been approved and is active.  If a student’s OPT is already approved and active (meaning the student has been issued an employment authorization document (EAD) card and the start date of the EAD has passed), the student should have received an email from SEVP with instructions on creating a portal account. This email came from do-not-reply.sevp@ice.dhs.gov to the student’s email address associated with the student’s SEVIS record (which will be the email address they have checked as “preferred” in their MyPack account). If students are unsure which email address is associated with their SEVIS account, students should monitor all email accounts they have registered in MyPack. Students should check their spam or junk mail folder also to ensure they didn’t miss the email. If a student’s OPT is approved and active, but the student hasn’t received an email from SEVP, the student can contact OIS to request a resend of the email. If a student’s OPT status in SEVIS is still “requested” or pending”, the student will not receive an email until the OPT status has been changed to “approved” which happens when the EAD is issued.

How Do Students Use the Portal?

The SEVP Portal allows students to:

• View details about their post-completion OPT or STEM OPT;
• Report changes to their residential address, telephone number and employer information;
• View and update data on all of their employers in one place.

The SEVP Portal and Student and Exchange Visitor Information System (SEVIS) regularly share data. Data entered into the Portal is sent immediately to SEVIS to update the student’s record. Information comes from SEVIS to the Portal only once a day. Therefore, any updates of a student’s information in SEVIS appear in the Portal the next day. The SEVP Portal User Guide provides detailed instructions for using the portal.

• For Students on Post-Completion OPT: Students on OPT are able to add, edit, and delete employer information. Students on OPT should create a Portal account as soon as they receive an email from SEVP and begin reporting employment information using the SEVP Portal. When your employment ends, make sure to update the information in the SEVP Portal by editing the end date of the employment. When you start to work with a new employer, make sure to add a new employer record. OPT regulations require that you report the start and end of your employment within 10 days of occurrence.

• For Students on STEM OPT: Students on STEM OPT cannot add or delete any employers in the SEVP Portal. To add an employer, the student must submit a completed Form I-983 and a New Employer Form to OIS using the STEM OPT Upload Center. To delete an employer from the student’s SEVIS record, the student must contact OIS. Students on STEM OPT can edit some of their employer’s information in the SEVP Portal, but if the student needs to edit any of the read-only fields, the student must contact OIS. IMPORTANT: STEM OPT Students must continue using OIS’s online OPT Validation form to submit their 6-month validation reports. STEM OPT Students should review all STEM OPT reporting requirements listed on our STEM OPT web page.

What Should Students on OPT/STEM OPT Do Now?

Students should familiarize themselves with the information available about the Portal. Please review the following resources provided by SEVP:

• Information about the portal.
• The SEVP Portal User Guide which provides screenshots and detailed step-by-step instructions for using the portal.
• SEVP Portal videos.
• A useful one-page reference sheet on the Portal.

At this time, OIS does not possess any additional information about the Portal other than the information and links provided in this email. Students should not contact OIS to confirm that they created a portal account. If students have any questions about the portal or need assistance, they can call the SEVP Response Center at 703-603-3400.

Students and Scholars –

On June 26, 2017, the U.S. Supreme Court (the Court) issued an opinion which allowed part of Executive Order 13780 (the revised “travel ban”) to go into effect on Thursday, June 29.  

The Court’s decision limited the impact of the ban, which attempts to bar visa issuance and entry to the United States for foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen.  In its decision, anyone who has a “bona fide relationship with a person or entity in the United States” is exempted.  As long as an individual from those six countries can prove a “bona fide relationship” with a person or entity that is “formal, documented, and formed in the ordinary course” [rather than a relationship being formed specifically for the purpose of qualifying for this exemption], the ban will not apply to them.  

In its ruling, the Court specifically stated that students from the designated countries who have been admitted to a University are considered to have this ‘bona fide relationship’ with an American entity. So too would a worker who accepted an offer of employment from an American company (for those of you on J-1 Research Scholar status, Post-Completion OPT, or who are pending a change of status to H-1B).

Remember that even prior to this court decision, a national of one of the six restricted countries was already exempt from the travel ban (per the express terms of the March 6 Executive Order) if he/she falls into one of the following categories: 

• U.S. lawful permanent resident (green card holder);
• Dual national traveling on a passport from a non-restricted country; (Canadian permanent residents are not exempt); 
• Possesses a valid, multiple-entry U.S. visa and is otherwise admissible to the United States;
• Applicant for adjustment of status with valid advance parole;
• Granted asylum in the United States; or
• Admitted as a refugee or is a refugee whose travel was already formally scheduled by the U.S. State Department.

How this Supreme Court Opinion Impacts NC State:

• There is no change on travel guidance to our international campus community. Due to the continuing uncertainty regarding the travel ban and how these ‘bona fide relationships’ will be reviewed (The Court will hear oral arguments on the full Executive Order in October 2017) we still recommend that impacted individuals refrain from travel if at all possible.
• Individuals from any of the six countries who are currently outside the U.S. and need a visa to enter should still be granted a visa and admitted, with clear evidence of a bona fide relationship. According to the Court, examples of a bona fide relationship include:
• Close familial relationships (DHS and DOS have issued FAQs on the definition of a close familial relationship.  The state of Hawaii already challenged this definition in District Court, so this may change);
• Students at U.S. universities or individuals who have already been admitted or are attending a U.S. university;
• Employees of U.S. entities or individuals that have already accepted employment or are working with a U.S. entity; or
• Foreign nationals invited to lecture to an American audience
• The Department of State has issued an FAQ regarding implementation of the Executive Order.
• The Department of Homeland Security (which governs Customs and Border Protection) has also issued an FAQ regarding implementation.
• All international travelers should continue to expect delays during visa appointments and at ports of entry. Consular officers abroad and CBP at all ports of entry will now have to accommodate the Court’s ruling and agency protocol and make additional decisions regarding who to admit into the U.S., which will undoubtedly cause additional delays.   
• As always, Customs and Border Protection (CBP) will continue to determine, on a case-by-case basis, whether the individual is admissible to the U.S.  It’s possible CBP will decide to re-review the bona fide relationship to the U.S., even if the person already met this burden and obtained an entry visa at a U.S. consulate or embassy overseas. If travel is necessary, we strongly recommend that individuals from any of the six countries carry extensive documentation showing their bona fide ties to the United States.  Please work closely with OIS if you must travel to prepare this documentation.
• The executive order also authorizes the DHS and DOS to grant discretionary waivers of the entry ban where the denial of entry would cause hardship or the foreign national’s entry is in the national interest and entry would not pose a threat to national security. However, the stringent criteria and lack of a clear application process suggest that waivers may be difficult to obtain.

If you decide to travel, please make an appointment with an advisor at OIS so that we can advise you on what documentation to travel with and what to do should you encounter difficulty in getting a visa in time to return for classes or if you encounter difficulty at the Port of Entry.

The Office of International Services, International Employment, and the Office of General Counsel are closely monitoring the government’s implementation of the Supreme Court decision and the executive order, and will provide further information as developments occur.