USCIS Changes Website, Backtracks On Foreign Student Rules

[muffin17 7]

Hi All,

 

USCIS is changing their policy of how they determine days overstayed for F/J/M non-immigrant visas. Basically, they will start counting these days much earlier and those with 180+ days overstayed may be barred from re-entering the U.S. for 3 or 10 years.

 

They are currently accepting comments on the policy change until June 11th. The policy will go into effect on August 9, 2018. You can leave a comment here: USCIS policy change comments here

 

For more information about the policy changes see the links below.

https://www.uscis.gov/news/news-releases/uscis-changing-policy-accrued-unlawful-presence-nonimmigrant-students-and-exchange-visitors

 

http://www.aila.org/File/DownloadEmbeddedFile/75993

 

https://www.nafsa.org/Professional_Resources/Browse_by_Interest/International_Students_and_Scholars/Accrual_of_Unlawful_Presence_and_F,_J,_and_M_Nonimmigrants/

 

[SusieQQQ 11,586]

About time. As we see in the forums regularly, there has been a lot of abuse of the D/S provision.

[Crazy Cat 41,974]

12 minutes ago, SusieQQQ said:

About time. As we see in the forums regularly, there has been a lot of abuse of the D/S provision.

I am just leaning a little about D/S.  Is it basically open-ended?

[geowrian 22,337]

3 minutes ago, missileman said:

I am just leaning a little about D/S.  Is it basically open-ended?

Aliens admitted as D/S do not have a fixed date that they must leave the US. For students, their status is basically tied to their SEVIS record (this is overly generalized...there are some procedures for reinstatement and such). However, current USCIS policy is that they do not start accruing unlawful presence unless either USCIS or an immigration judge (IJ) determines that they are no longer in status. This would typically be due to applying for another benefit (AOS/COS/TPS/DACA?/etc.) or removal proceedings.

 

This change means that after the August 9th date, even if you were admitted as D/S under as an F/J/M status, once you no longer have a valid status (including those already admitted who are currently no longer in status) you will start accruing unlawful presence. Unlawful presence will incur the 3/10 year bars at 180+ days of unlawful presence and exiting the US, and also is a barrier to AOS (unless exempted such as IRs of a USC).

 

That said, this has been reported on for a couple weeks now...it's not anything brand new.

 

Note that this doesn't affect aliens admitted as D/S in other statuses..such as Canadians who were not issued an I-94 upon entry.

[Boiler 45,646]

Hopefully one of the Mods will merge this with the other threads.

[SusieQQQ 11,586]

2 hours ago, missileman said:

I am just leaning a little about D/S.  Is it basically open-ended?

 

2 hours ago, geowrian said:

Aliens admitted as D/S do not have a fixed date that they must leave the US. For students, their status is basically tied to their SEVIS record (this is overly generalized...there are some procedures for reinstatement and such). However, current USCIS policy is that they do not start accruing unlawful presence unless either USCIS or an immigration judge (IJ) determines that they are no longer in status. This would typically be due to applying for another benefit (AOS/COS/TPS/DACA?/etc.) or removal proceedings.

 

This change means that after the August 9th date, even if you were admitted as D/S under as an F/J/M status, once you no longer have a valid status (including those already admitted who are currently no longer in status) you will start accruing unlawful presence. Unlawful presence will incur the 3/10 year bars at 180+ days of unlawful presence and exiting the US, and also is a barrier to AOS (unless exempted such as IRs of a USC).

I saw recently someone (different forum) has been here 5 years overstaying on a J visa but because he was admitted D/S has not started accruing unlawful presence yet! Even though he's clearly in violation of a bunch of things.  Totally ridiculous !!!

[muffin17 7]

3 hours ago, geowrian said:

Aliens admitted as D/S do not have a fixed date that they must leave the US. For students, their status is basically tied to their SEVIS record (this is overly generalized...there are some procedures for reinstatement and such). However, current USCIS policy is that they do not start accruing unlawful presence unless either USCIS or an immigration judge (IJ) determines that they are no longer in status. This would typically be due to applying for another benefit (AOS/COS/TPS/DACA?/etc.) or removal proceedings.

 

This change means that after the August 9th date, even if you were admitted as D/S under as an F/J/M status, once you no longer have a valid status (including those already admitted who are currently no longer in status) you will start accruing unlawful presence. Unlawful presence will incur the 3/10 year bars at 180+ days of unlawful presence and exiting the US, and also is a barrier to AOS (unless exempted such as IRs of a USC).

 

That said, this has been reported on for a couple weeks now...it's not anything brand new.

 

Note that this doesn't affect aliens admitted as D/S in other statuses..such as Canadians who were not issued an I-94 upon entry.

Thanks for the clarification! I'm not an expert in student visas, can someone please explain if this would negatively impact extending your visa/applying for a new one once you finish your program/degree? 

[Lemonadepie345 2]

I’m still a little confused. So, if the visa or I-94 is expired but they were admitted under D/S would they be considered or of status?

Edited June 21, 2018 by Lemonadepie345

[geowrian 22,337]

Just now, Lemonadepie345 said:

I’m still a little confused. So, if the visa or I-94 is expired but they were admitted under D/S would they be considered or of status?

Yes, they would still be out of status, but they were previously not accruing unlawful presence. After Aug. 9th, they will start accruing unlawful presence as well.

[Lemonadepie345 2]

Just now, geowrian said:

Yes, they would still be out of status, but they were previously not accruing unlawful presence. After Aug. 9th, they will start accruing unlawful presence as well.

One more question, what are students suppose to do once the student visa expires? Because I have always heard that it doesn’t matter if the visa expires as long as they are in school because of D/S. So, are we suppose to go back to our country and reapply? 

[Jojo92122 1,924]

12 minutes ago, Lemonadepie345 said:

I’m still a little confused. So, if the visa or I-94 is expired but they were admitted under D/S would they be considered or of status?

Legal status in the US is determined by the I-94 and complying with all the requirements of the F-1 visa.  The visa allows you to be admitted into the US at the POE.  It has nothing to do with how long you are legally allowed to stay in the US.  The I-94 and maintaining F1 status determines how long you are legally admitted to be inside the US.

 

9 minutes ago, Lemonadepie345 said:

One more question, what are students suppose to do once the student visa expires? Because I have always heard that it doesn’t matter if the visa expires as long as they are in school because of D/S. So, are we suppose to go back to our country and reapply? 

The visa expiration has nothing to do with your legal status in the US.  The F1 visa expiration is only relevant for entering the US.

F1 student visas expires after 1 year.  Most students stay in the US while their I-94 is D/S and they maintain status when their F1 student visas expires after 1 year.  Many students are legal in the US years after their F1 student visas expire. 

ONLY WHEN THEY LEAVE THE US, they would need an UNEXPIRED visa to enter the US again.  Most F1 students will renew their F1 visas when abroad. 

[Coco8 1,042]

26 minutes ago, geowrian said:

Yes, they would still be out of status, but they were previously not accruing unlawful presence. After Aug. 9th, they will start accruing unlawful presence as well.

What has to expire is the i-20, not the visa. You can be in the US with an expired F1 on your passport, but as long as the i-20 is valid you are alright. 

 

24 minutes ago, Lemonadepie345 said:

One more question, what are students suppose to do once the student visa expires? Because I have always heard that it doesn’t matter if the visa expires as long as they are in school because of D/S. So, are we suppose to go back to our country and reapply? 

No, it is not because of D/S but because of the i-20.

 

You can apply to get an F1 renewed (not a new F1, a renewal which usually does not require interview if you got your consulte -- which you should but may vary by country) which you will need if you leave the US and want to come back in.

 

9 minutes ago, Jojo92122 said:

Legal status in the US is determined by the I-94 and complying with all the requirements of the F-1 visa.  The visa allows you to be admitted into the US at the POE.  It has nothing to do with how long you are legally allowed to stay in the US.  The I-94 and maintaining F1 status determines how long you are legally admitted to be inside the US.

 

The visa expiration has nothing to do with your legal status in the US.  The F1 visa expiration is only relevant for entering the US.

F1 student visas expires after 1 year.  Most students stay in the US while their I-94 is D/S and they maintain status when their F1 student visas expires after 1 year.  Many students are legal in the US years after their F1 student visas expire. 

ONLY WHEN THEY LEAVE THE US, they would need an UNEXPIRED visa to enter the US again.  Most F1 students will renew their F1 visas when abroad. 

Again, no, it not because of the i-94. I've never seen an i-94 for an F1 that didn't say D/S, but if it were the case, it would be an exception and of course you'd have to check it. The key is the i-20. It has to be valid which required the individual being a full-time student. 

 

F1 visas do not expire after one year. It varies depending on the program of study. I had it for 2 and had to get it renewed, and my sister got it for 5. The one that you usually have to renew constantly is the J1. 

 

 

 

 

Edited June 21, 2018 by Coco8

[maryLu 58]

My husband was a F1 student with D/S on his I94. He completed his studies in 2008, but did not leave the country.  The company he works for offered to sponsor us for EB3 visa through consular processing. We had our interview on August 2nd, got approved and entered yesterday. No questions asked either at the interview or by CBP about his F1, since he did not accumulate unlawful presence. Glad we were able to complete our case before this new law starts. 

[Jojo92122 1,924]

https://www.forbes.com/sites/stuartanderson/2018/08/20/uscis-changes-website-backtracks-on-foreign-student-rules/#305390314aa4

[aznhouston 132]

It doesn't effect marriage-based AOS.