Aug
10
2018

Student Visas, Immigration and Avoiding Unlawful Presence in the United States

The new academic year is upon us, and for many international students, it is important to remain up to date on all law and policies involving their student visas. There is a new policy memorandum from USCIS regarding unlawful presence in the United States in the event of failure to maintain student status, or an “overstay” of authorized admission to the United States.

Until August 9, 2018, such violations of student visas did not cause the accrual of “unlawful presence.”  A person who accrues more than six months’ unlawful presence is barred from entering the US for three years, and more than one year unlawful presence bars the individual from entering the US for ten years.  Additionally, they could become ineligible for other immigration benefits, such as adjustment of status to lawful permanent resident even if they otherwise qualify.  For these reasons, avoiding the accrual of unlawful presence is very important to a foreign national with a student visa.

Now, international students (under categories F, J and M) who fall out of status will begin to accrue unlawful presence the day after they fall out of their valid student status, or when their program of study ends (plus any optional practical training, and the 60 day grace period following completion).   An exception has been added to that policy (only for categories F and M), to prevent the accrual of unlawful presence as long as a timely application (within 5 months) for reinstatement is filed. If the application is granted, the student does not accrue any unlawful presence.  If the reinstatement is denied, the student will have accrued unlawful presence up to the date on which they filed the application, and from the day after the application is denied.

Rules regarding student visas and unlawful presence are complex and important for foreign students to understand.  If you are an international student and you have an immigration question, don’t wait- talk to a qualified immigration lawyer right away!