On May 11, 2018, the USCIS issueda policymemorandum that changed the rules regarding unlawful presencefor F-1 students.  Unlawful presencebegins to accrue once a foreign national has stayed beyond the end date onhis/her I-94 card.  Because F-1 I-94cards do not have an end date, but show D/S (duration of status) as the term ofstay, unlawful presence previously did not apply to F-1s. 
As of August 9, 2018, individuals in F, J,and M status who fail to maintain their status will start accruing unlawfulpresence 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 more than 180days of unlawful presence are generally subject to a 3 year bar of re-entry tothe US.  Individuals who accrue more than365 days of unlawful presence are generally subject to a 10 year bar ofre-entry to the US.
Things to keep in mind with regard to thisnew rule:
  • This new rule went into effect onAugust 9, 2018.  Unlawful presence willaccrue from August 9, 2018 or the date the student engages in unlawful activityforward.  No formal notice will be givento the student as to when unlawful presence begins to accrue.  If a student believes he or she may haveengaged in unlawful activity, the student should contact their DSO or animmigration attorney immediately for advice.
  • The timely filing of an applicationfor reinstatement stops the accrual of unlawful presence, and, if theapplication for reinstatement is approved, cures any unlawful presence in thestudent’s record.  Applications forreinstatement must be filed within 5 months of the date the student firstengaged in unlawful activity.
  • There is no accrual of unlawfulpresence during the cap-gap period or when a change of status from F, M, or Jto another status has been filed, unless the change of status request is denied.  Unlawful presence will begin to accrue fromthe date of the denial of the change of status going forward.  If the change of status is approved, theUSCIS will not reopen the previous F, M, or J. For example, if an F-1 student engaged in unlawful activity in 2016while on F-1 status but has now changed status to H-1B, the USCIS will notreexamine the 2016 F-1.