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.
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.
- STEM OPT to H-1B Visa working at the client location
- 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).
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.
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.