On May 11, 2018, the USCIS issued a policy memorandum that changed the rules regarding unlawful presence for F-1 students. Unlawful presence begins to accrue once a foreign national has stayed beyond the end date on his/her I-94 card. Because F-1 I-94 cards do not have an end date, but show D/S (duration of status) as the term of stay, unlawful presence did not apply to F-1s.
As of August 8, 2018, individuals in F, J, and M status who fail to maintain their status will start accruing unlawful presence on or after the date of one of the following events:
- The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while adjudicating the benefit request;
- The day after the student’s I-94 expires;
- The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), orders the student excluded, deported, or removed;
- The day after the student no longer pursues a course of study or authorized activity, or the day after the student engages in unauthorized activity (e.g. unauthorized employment); or
- The day after the student completes his/her course of study or program, including any authorized CPT or OPT plus any authorized grace period.
Individuals who have accrued more than 180 days of unlawful presence are generally subject to a 3 year bar of re-entry to the US. Individuals who accrue more than 365 days of unlawful presence are generally subject to a 10 year bar of re-entry to the US.
In April 2018, USCIS updated its website regarding STEM OPT extensions to indicate students are not permitted to engage in STEM OPT at third party worksite locations. No formal policy memo or update was announced regarding this change.
The 2016 STEM OPT Rule requires only that the student be a bona fide employee of the employer signing the I-983 training plan. The I-983 does require that the student “receive on-site supervision and training” but does not specify if the employer must provide this supervision.
This issue has been raised with DHS and members of Congress through industry groups and the American Immigration Lawyers Association and is currently under review.