On August 9, 2018, USCIS implemented a revised policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.”
Under this memo, individuals in F, J, or M status begin to accrue unlawful presence at the earliest of the following dates:
- The day after they no longer pursue the course of study or authorized activity
- The day they engage in unauthorized activity
- The day after completing the course of study or program, including practical training and any authorized grace period
- The day after the period of authorized stay expires if admitted until a date certain (most students are admitted for D/S “duration of status” or for as long as they are in the program, rather than a date certain)
- The day an immigration judge orders the F, J, or M nonimmigrant removed, whether or not the decision is appealed
Violations of student status include exceeding authorized days of unemployment during the period of OPT, working more than 20 hours per week at a qualifying on-campus job, or working without authorization, such as after OPT or cap gap work authorization has expired.
This change is significant as the penalties can be severe: a person who overstays by even one day must return to his/her own country to obtain a visa. A person who accrues more than 180 days of unlawful presence and who departs the United States is barred from re-entering the United States for three years. A person who accrues one year or more of unlawful presence is barred from reentering the United States for ten years. A person who attempts to enter the United States during the bar will be permanently barred from the United States.
An F-1 student whose OPT EAD expires between April 1 and October 1, and who is selected in the H-1B lottery may continue to work in the United States after the EAD expires until the start of the new visa year on October 1 pursuant to “cap gap” authorization. Cap gap extends OPT EAD authorization until September 30. If the student’s H-1B has not been approved by October 1, the student may not continue to work in the United States based on cap gap. Instead, he or she must stop work and must be removed from the payroll.
It is important that any student whose cap gap has expired and whose H-1B has not yet been adjudicated by USCIS stop work on October 1 as work would be a violation of status and he/she will begin to accrue unlawful presence under the new memorandum referenced above.