In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s. These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).

Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program or otherwise violate the terms of their status. Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States. The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”

The change comes on the heels of an unannounced agency amendment to website guidelines impacting F-1 foreign students in the Science, Technology, Engineering, and Mathematics arena (STEM), who capitalizing on a three-year post-completion work authorization period known as optional practical training (OPT). This change prohibits STEM students from performing services at third-party (e.g., client) worksites as part of their STEM OPT curriculum.

Both changes are discussed below.

F, J, OR M NONIMMIGRANTS WHO FAIL TO MAINTAIN TERMS AND CONDITIONS OF THEIR STATUS MAY ACCUMULATE UNLAWFUL PRESENCE AS OF AUGUST 9, 2018

In September 1997, in implementing the newly enacted Illegal Immigration Reform and Immigrant Responsibility Act, legacy Immigration and Naturalization Service (INS) announced a policy of using the expiration date of the Form I-94 as the date from which to calculate unlawful presence for nonimmigrant overstays. For students and exchange visitors admitted D/S, INS decided to calculate unlawful presence starting with an official determination of violation of status by an immigration officer or immigration judge. DHS formally adopted this approach in 2009. The legacy approach offered some protection from the harsh effects of the three- and ten-year bars for students and exchange visitors who had inadvertently fallen out of status, e.g., by dropping below a full course load, but it also protected students and exchange visitors intent on remaining beyond the end of their programs.

Citing technological developments since 1997 that now allow for more precise tracking of compliance with academic and training programs, USCIS will rely on the information entered by the school/training sponsor into SEVIS. The agency has invited public comment for a 30-day period on this change. We can expect to see substantial commentary from the academic community, which is largely responsible for the accuracy of the data contained in SEVIS. Concerns will likely include whether this new approach will provide the student/exchange visitor with definitive notice of a violation and that he or she is accruing unlawful presence as a result. One concern with the new approach is that it strays from the bright line created in 1997. Under the new policy an adjudicating officer could make a determination that a prior minor infraction could have resulted in months or even years of unlawful presence having already been accrued. Consequently, we are advising our clients in student or exchange visitor status to pay careful attention to the information contained in their SEVIS records and to bring any discrepancies to the attention of their school/employer right away.

Once the new policy is implemented, USCIS will calculate unlawful presence for students and exchange visitors as follows.

  • Individuals in F, J, and M status who failed to maintain their status before August 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 the individual was admitted for a date certain (versus D/S); or
    • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).
  • Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
    • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage 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 the I-94 expires, if the individual was admitted for a date certain (versus D/S); or
    • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

With regard to accompanying spouses or minor children in F-2, J-2, or M-2 nonimmigrant dependent status, their dependent period of stay authorized is contingent on the principal F-1, J-1, or M-1 nonimmigrant remaining in an authorized period of stay; their dependent period of stay ends when the principal’s period of stay ends even if their dependent I-94 indicates a later day. In addition, they may lose their status independently of the principal (e.g., due to prohibited conduct).

STEM STUDENTS WORKING AT THIRD-PARTY SITES MAY BE DEEMED OUT OF STATUS IN FUTURE APPLICATIONS, SUCH AS AN H-1B VISA APPLICATION

The reversal of the 1997 Memorandum [make defined term above] follows from another action, an unannounced change posted on USCIS’s website in April 2018, affecting certain foreign graduates of US Science, Technology, Engineering and Mathematics fields (STEM). Under current regulations [link], STEM students may capitalize on an extension of the typical 12-month work-authorized training period allowed to F-1 holders, known as post-completion Optional Practical Training (OPT), for an additional 24 months. The amended guidelines for STEM OPT issuance on the agency website prohibit STEM OPT holders from engaging in training at third-party sites. Because the change was not announced in advance, students already engaging in part of their training curriculum at a third-party site of their employer’s client may be considered to have violated the conditions of their OPT authorization. If and when those students apply for a new status in future, such as an H-1B visa as a potential specialty occupation worker, may be considered to be out of status. Such a finding could block the student’s ability to convert to H-1B status through a change of status petition request in the United States, and compromise the cap-gap work authorization that such change of status requests can allow. See Mayer Brown Legal Advisory, What Every Employer Needs to Know About the FY 2019 H-1B Cap (April 5, 2018).

The only rationale USCIS provides for the change is that its sister agency in the Department of Homeland Security, Immigration & Customs Enforcement (ICE), would not necessarily have access to third-party sites in order to conduct inspections of the student’s status. As noted in the guidelines:

“Moreover, the training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.”

While there are other rationales that could have influenced the agency, such as ensuring that there is a legitimate employer-employee relationship between the OPT employer and the F-1 student, these do not seem to have influenced the announcement. In any event, the most recent agency policy memorandum on this point, which arises in the context of addressing H-1B workers performing services at third-party sites, confirms that the employment relationship may be proven regardless of the performance of services taking place at client (or other third-party) worksites, provided the sponsoring employer maintains and can document control, supervision, and personnel authority over the worker. See USCIS Policy Memorandum, Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (February 22, 2018).