USCIS has recently issued two updates that impact F-1 students.
Unlawful Presence
On May 11, 2018, the USCIS issued apolicymemorandum that changed the rules regarding unlawful presence for F-1students. Unlawful presence begins toaccrue once a foreign national has stayed beyond the end date on his/her I-94card. Because F-1 I-94 cards do not havean end date, but show D/S (duration of status) as the term of stay, unlawfulpresence did not apply to F-1s.
As of August 8, 2018, individualsin F, J, and M status who fail to maintain their status will start accruingunlawful presence on or after the date of one of the following events:
- The day after DHS denies the student’srequest for an immigration benefit with a formal finding that the studentviolated status while adjudicating the benefit request;
- The day after the student’s I-94expires;
- The day after an immigration judgeor in certain cases, the Board of Immigration Appeals (BIA), orders the studentexcluded, deported, or removed;
- The day after the student no longerpursues a course of study or authorized activity, or the day after the studentengages in unauthorized activity (e.g. unauthorized employment); or
- The day after the student completeshis/her course of study or program, including any authorized CPT or OPT plusany authorized grace period.
Individuals who have accrued morethan 180 days of unlawful presence are generally subject to a 3 year bar ofre-entry to the US. Individuals whoaccrue more than 365 days of unlawful presence are generally subject to a 10year bar of re-entry to the US.
STEM OPT
In April 2018, USCIS updated itswebsite regarding STEMOPT extensions to indicate students are not permitted to engage in STEM OPTat third party worksite locations. Noformal policy memo or update was announced regarding this change.
The 2016 STEM OPT Rule requiresonly that the student be a bona fide employee of the employer signing the I-983training plan. The I-983 doesrequire that the student “receive on-site supervision and training” but doesnot specify if the employer must provide this supervision.
This issue has been raised with DHSand members of Congress through industry groups and the American ImmigrationLawyers Association and is currently under review.