I came to the US on an F-1 student visa. Am I subject to the Unlawful Presence 3-year or 10-year bar?

QUESTION: I came to the US on an F-1 student visa. I overstayed my I-20 document by more than 180 days. If I have to leave the country to get a new visa, will I be subject to the 3-year bar?

THE IMMIGRATION ANSWER MAN – ARI SAUER: Your question is regarding the Unlawful Presence bar. A foreign national who enters the US without inspection or who enters on a visa and overstays their expiration date on their I-94 entry document may fall into a category called “Unlawful Presence.” Someone who has been unlawfully present for more than 180 days and leaves the US will be subject to a three-year bar from being able to get a visa to return to the US. Someone who has been unlawfully present for more than a year and leaves the US will be subject to a ten-year bar from being able to get a visa to return to the US. There is a possibility of obtaining a waiver of the 3- or 10-year bar, without waiting the 3 or 10 years, if the applicant has a US citizen or permanent resident spouse or parent and can show that their relative will suffer extreme hardship if the waiver is not granted.

There has been a recent change in when someone who enters the US on an F-1 visa, J-1 visa, or M-1 visa will start accruing Unlawful Presence; as with all three statuses, the foreign national is given an I-94 that does not have an expiration date, but instead is issued for “D/S” (duration of status).

Under the previous policy, overstaying the I-20 did not cause someone in F-1 status (or someone in J-1 status who overstayed their DS-2019) to start accruing unlawful presence unless there was a formal determination issued by USCIS or an Immigration Judge that they are out of status. Since a person who never accrues 180 days of unlawful presence (or 1 year) is not subject to the 3-year bar (or 10-year bar) when they leave the US, most who entered the US on F-1 or J-1 visas would not have been subject to this bar.

However, DHS issued memos on May 10, 2018 and August 9, 2018 changing this policy. The new policy went into effect on August 9, 2018. Under this new policy, anyone who entered on an F-1 visa or a J-1 visa who fails to maintain their nonimmigrant status will start to accrue Unlawful Presence as of the date of that failure.

However, those who failed to maintain their nonimmigrant status prior to August 9, 2018, but had not already begun accruing unlawful presence under the previous policy, will begin accruing unlawful presence as of August 9, 2018.

Under the new policy, someone will be considered to have failed to maintain their nonimmigrant status when any of the following occurs:

1. The F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or they engage in an unauthorized activity;
2. They complete the course of study or program, including any authorized practical training (CPT or OPT) plus any authorized grace period and remain in the US beyond that time without filing a timely change of status or extension of status;
3. When the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain and remain in the US beyond that date without filing a timely change of status or extension of status; or
4. When an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Foreign students (F-1 status) will generally not be accruing Unlawful Presence in the following situations:

• During the 30 day period that a student is allowed to enter on the visa before the program start date listed on the F-1 nonimmigrant’s Form I-20;
• While the F-1 nonimmigrant is pursuing a full course of study at an educational institution approved by DHS for attendance by foreign students, and any additional periods of authorized pre- or post-completion practical training;
• During a change in educational levels, provided the F-1 nonimmigrant transitions to the new educational level according to required transfer procedures;
• While the F-1 nonimmigrant is in a “cap gap” period, that is, during an automatic extension of an F-1 nonimmigrant’s D/S and employment authorization as provided for a beneficiary of an H-1B petition and request for a change of status that has been timely filed and states that the employment start date for the F-1 nonimmigrant is October 1 of the following fiscal year;
• While the F-1 nonimmigrant’s application for post-completion Optional Practical Training (OPT) remains pending;
• While the F-1 nonimmigrant is pursuing a school transfer provided that he or she has maintained status;
• The period of time a timely-filed reinstatement application is pending with USCIS;
• Certain periods of time an F-1 nonimmigrant was out of status prior to the filing of the reinstatement application, if he or she applies for reinstatement, provided that the application is ultimately approved;
• During annual vacation permitted if the F-1 nonimmigrant is eligible and intends to register for the next term;
• During any additional grace period as permitted to prepare for departure:
  • 60 days following completion of a course of study and any authorized practical training;
  • 15 days if the designated school official (DSO) authorized the withdrawal from classes (SEVIS termination reason: authorized early withdrawal); or
  • No grace period if the F-1 nonimmigrant failed to maintain a full course of study without the approval of the DSO or otherwise failed to maintain status.
• Certain emergent circumstances in which any or all of the requirements for on-campus or off-campus employment are suspended by a Federal Register notice and the student reduces his or her full course of study as a result of accepting employment based on the Federal Register notice; and
• During a period of reduced course load, as authorized by the DSO.

Foreign exchange visitors (J-1 status) will generally not accrue unlawful presence in the following situations:

• The period of time annotated on Form DS-2019 as the approved program time plus any grace period, either before the program start date or after the conclusion of the program;
• Any extension of program time annotated on Form DS-2019;
• While the J-1 nonimmigrant is in a “cap gap” period; and
• The period of time a J-1 nonimmigrant was out of status, if he or she is granted reinstatement.

Foreign vocational students (M-1 status) will generally not accrue unlawful presence in the following situations:

• The period of admission as indicated on Form I-94, plus up to 30 days before the report or start date of the course of study listed on the Form I-20;
• Any authorized grace period as outlined in 8 CFR 214.2(m)(5).

Also, a Foreign National under 18 years of age does not accrue Unlawful presence. Therefore, any F-1, J-1, or M-1 nonimmigrant who is under 18 years of age does not accrue unlawful presence, even if they failed to maintain their nonimmigrant status. In such a situation, they would start accruing Unlawful Presence as of their 18^th birthday.

Submit questions to Ari Sauer – The Immigration Answer Man by emailing your question to immigrationanswerman@gmail.com. Questions submitted by email will be posted without personal information unless specifically requested. Due to the volume of questions received, not all questions submitted will be answered. Only general questions can be answered on this blog. For answers to specific questions about your situation, please schedule a consultation appointment with attorney Ari Sauer. Sending in a question by email or any other means does not create an attorney-client relationship.

* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. www.visalaw.com/ari. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing, and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of Tennessee, New York, and New Jersey but is eligible to assist clients from throughout the US. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed. the opinions expressed here are those of Ari Sauer and do not necessarily reflect the opinions of the Siskind Susser law firm.