Foreign Student Drop-outs Now Automatically Accrue Unlawful Presence

Thomas M. Lee

Gone are the days when a foreign student in F-1 status who fails to maintain their status, such as by failing to attend school or working without authorization, could nevertheless enjoy “duration of status” for several years or more and not accrue unlawful presence in the U.S. until either an immigration judge or the USCIS declares the student to be out of status. “Duration of status” means that a foreigner present who is present in the U.S. under either a student visa or work training visa, enjoys lawful status and does not accrue unlawful presence even if they stop attending school or otherwise violate their status until such time that the USCIS or an immigration judge declares a violation of their status. It is only then when unlawful presence began accruing. Under the 3/10 year bar, an alien who accrues more than 6 months but less than 12 months of unlawful presence and then leaves the U.S. is barred from reentering for 3 years. The bar increases to 10 years if an alien accrues more than 12 months of unlawful presence and then departs the U.S.

As of August 9, 2018, the USCIS has implemented a new policy where foreign students are automatically deemed to accrue unlawful presence as soon as they violate the terms of their stay, such as failing to attend school or working without authorization. The policy also applies to M-1 students and J-1 trainees. The full USCIS guidance memorandum also provides that those aliens in F-1, M-1, or J-1 status who were already in violation of their status on August 9, 2018 have been accruing unlawful presence as of this date regardless of the knowledge or declaration by the USCIS or an immigration judge. The new policy also affects the dependent family members of such aliens who are in the U.S. under F-2, M-2, or J-2 visas.

While the intent of the new USCIS policy is clearly aimed at deporting and punishing aliens who fall out of status, it may lead to the creation of more undocumented aliens refusing to leave the U.S. and instead living underground due to the harsh 3/10 year bar penalty. The closing of this loophole will likely further strengthen the underground economy from which the U.S. can’t benefit. Giving undocumented aliens a pathway to citizenship brings them out from the darkness and turns them into taxpayers who contribute to our economy and society.

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