unlawful presence memo impact f1 visa opt stem opt

What Happens Next for STEM OPT, H1B Visa Under the Unlawful Presence Memo

You should have heard about two Memo from USCIS in the past few months that’s been discussed and looked through the lens – The Memo for Accrual of Unlawful Presence for F, J and M Visa holders went into effect on August 9, 2018, and third-party placement of STEM OPT workers.

The third party work site placement is not a memo, but update from the USCIS on their web page and they have listed reference to the Rule.

Here is the timeline of Accrual of unlawful presence memo from USCIS:

  • Draft Memo Published on May 11, 2018
  • Public Comments Accepted Until June 11, 2018
  • Total Comments received: 297
  • Memo Effective Date: Aug 9, 2018

The Big Picture:

USCIS published the draft memo, Accrual of Unlawful Presence and F, J, and M Nonimmigrants to updated its policy on how status violation on F, M & J Visa could lead to the ban on reentry into the U.S. and the memo went into effect on August 9, 2018.

  • 3-year reentry ban if the total number of days after the status violation is 180 or less.
  • 10-year re-entry ban for 180 days or more of the status violation.

The Background: 

Previous to this memo, USCIS calculated the unlawful presence from the day USCIS Official or Immigration Judge formally found the status violation.

With this memo, the number of days is calculated from August 9, 2018,  and it accumulation of days can be paused if reinstatement is filed within 5 months of the status violation.

What is Status Violation:

According to the memo, the following would be considered as a status violation

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or, in certain cases, the BIA11 orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Impact of the unlawful presence memo:

So, who does this memo impact? I can think of two categories of visa holders without including those who violated the status by other means.

  1. STEM OPT to H-1B Visa working at the client location
  2. F1 Visa to H-1B while attending Day 1 CPT Universities (Why I Don’t Recommend Day 1 CPT Universities)

Why it matters: 

Pay close attention to the sentence –

The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity or the day after he or she engages in an unauthorized activity.

USCIS did not provide additional details of what constitutes unauthorized activity. But, you can get clues about what is considered as unauthorized activity from the RFE’s for STEM OPT application, H1B Visa RFE’s and petition denials.

Here is one such Request for Evidence (RFE) from USCIS for a student using more than 12 months of total practical training (CPT & OPT).

stem opt rfe more than 12 months of practical training

There are similar RFE’s during H-1B Visa application from F-1 Visa holders who are attending Day 1 CPT Universities.

USCIS has approved H-1B petitions from Day 1 CPT students who continued to maintain the employment from the same employer before and after starting Day 1 CPT university. but, the petition got approved without Change of Status. You can read about it in several law firm sites discussing this scenario.

STEM OPT Students Working at Client Site

According to USCIS, STEM OPT students can work at client site but employer-employee relationship should be maintained.

Additionally, DHS is clarifying that STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.

The Impact of the Memo:

Please ask your questions to an Immigration Attorney about your situation.

Let’s assume you have applied for H-1B Visa while on STEM OPT along with Change of Status (COS).

If USCIS thinks that your H1B Visa petition is valid, but they don’t think the applicant maintained the status, so the change of status part of the application could be denied.

Now, combine that with the Accrual of Unlawful presence memo and work out the dates as follows.

  • Memo Effective Date: Aug 9, 2018
  • Add 180 Days: Feb 5, 2019
  • Apply for H-1B Visa: April 1, 2019
  • H-1B Visa RFE: Aug 1, 2018
  • Status Violation Starts from Aug 9, 2018: 357 Days (Aug 9, 2018 to Aug 1, 2019)

That’s more than 180 days and it could come with 10-year re-entry ban as per the memo. As per the final published memo, the accrual of unlawful presence days can be halted by filing reinstatement within 5 months of the status violation.

The Bottomline:

When it comes to immigration, any adverse decision on your petition impacts you and your family personally.

One would have to live through such situation to see the pain and suffering it brings and at that point, you can’t argue who’s right or wrong. I shared a picture of someone listing everything in their home for sale and they have to leave the country by end of this week because visa extension was denied.

And sitting on the other side of the fence and hoping that these changes wouldn’t impact you is a mistake.

There are hundreds if not thousands of F1 Visa students applying for H1B from the Day 1 CPT universities or working at client sites and receiving approval. But, it means nothing to you. There’s shouldn’t be a group thinking when it comes to immigration petition.

Someone else receiving H1B Visa approval with Change of Status and approval of your petitions are mutually exclusive events. 

If there is a shadow of a chance that third-party placement and the unlawful presence memos could impact you, then think about the Murphy’s Law!

  • Plan for the worst case scenario
  • Be Proactive – Know your options today, not after receiving RFE or Denial

We don’t have anything concrete yet on how this memo would impact STEM OPT and H-1B Visa applicants. I’m writing this all the good intentions to let you know about the potential impact, so you can take the necessary steps today!

I doubt anyone would come forward to share about their reentry ban if this memo impacted them. Unlike RFE and visa interviews, the impact of this memo is something you wouldn’t hear in a group or page.

Read Next: The Impact of Day 1 CPT Universities Due to Unlawful Presence Memo

5 Comments

  1. Livia on September 20, 2018 at 5:48 PM

    Hi, I received the H1b RFE on STEM, however, my STEM is still PENDING!!
    So I believe they have no grounds to deny change of status due to STEM violation (if they do think the violation from 3rd party placement) ? Because I was on my Post Completion OPT when the company filed H1b petition.

    My question is that the H1b extended my OPT through 9/30. If I continue working after 9/30 (the STEM Pending also give me 180 days until the decision), do they now have reason to deny change of status since technically, I’m using STEM after 9/30? What if I stop working after 9/30 and just wait for the 2 decisions?

    Could you advise which is better?

  2. Senthilkumar on September 12, 2018 at 2:00 PM

    Sorry for asking in this post. I have H1 and moved to USA. My wife has H1 and it expired this july. She is in India. She has to go through cap exempt. Can we go for premium processing. Is it available now.

  3. Sazo on September 3, 2018 at 1:30 PM

    Hi,
    In the paragraph just before the second headline”STEM OPT Students Working at Client Site” you have mentioned that people are getting H1 approvals without change of status. This is could only happen if you are filing in consular filing from India if I am not wrong?
    But, as you mentioned Day1 CPT students who continued to maintain the employment from the same employer before and after starting Day1 CPT university has got approvals. Can you please give some of the law firm names with this cases if you know?
    Thanks

  4. Surya on August 18, 2018 at 1:11 PM

    The image you have posted describing the “Request for Evidence (RFE) from USCIS for a student using more than 12 months of total practical training (CPT & OPT) ” shows that the “”student has done CPT during his first masters degree.””

    This is approved from DSO’s from top Schools not the regular day 1 CPT colleges. Can you provide more info on that. Is doing a internship during first masters and subsequently using 12 months of opt a violation. Do you have any data regarding the approval or denials of the submitted rfe’s.

    • Raghuram Sukumar on August 19, 2018 at 9:02 AM

      Hello Surya,

      There are several reported RFE’s for CPT + OPT Then H1B and CPT + OPT + STEM OPT > H1B. I have published what was reported by the members of the F1 Community group. I don’t have additional data. You would have you consult an attorney on case-by-case basics. Thanks for commenting.

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