On May 10 this year, USCIS announced a new policy on its official website, changing the long-standing method of calculating overstay for F, M, and J visa students and exchange visitors. The policy clarified the rules for those who remain in the US unlawfully after losing lawful status.
This move caused an outcry in the study-abroad community. It is understandable that the US aims to crack down on intentional overstayers who remain after graduation with no intention of leaving, but the broad sweep approach was so extreme that it unfairly penalized students who inadvertently or accidentally lost lawful status. After a 30-day public comment period, the USCIS finally succumbed to criticism from immigration law professionals and revised the most criticized detail—so what was the point?
USCIS amended the May 10 version, changing the rule that “overstay days start counting from the date the individual’s lawful status actually expired” to:
If an F, M, or J visa student or exchange visitor loses status but timely (within five months of status expiration) files a reinstatement application, the time spent waiting for adjudication will not count toward overstay days. If the reinstatement is denied, overstay days will start accruing the day after the denial.
The new rule took effect on August 9, 2018.
Overstay consequences are severe: accruing more than 180 days of unlawful presence after a single entry can result in a 3- or 10-year ban from re-entry; accruing more than one year of unlawful presence over single or multiple entries leads to a permanent bar from the US.
As of August 9, 2018 and after, meeting any of the following conditions while remaining in the US without lawful status constitutes unlawful presence:
The day after completing a course of study or authorized activity, or the day after being found to have engaged in activities inconsistent with status;
The day after completing program, post-completion practical training, and the lawful grace period;
The day after the I-94 expires;
The day after an immigration judge or the Board of Immigration Appeals orders departure, exclusion, or removal.
USCIS also reiterates that the status of all F-2, J-2, and M-2 dependents is tied to the lawful stay of the F-1, J-1, or M-1 primary visa holder.
This new policy memorandum lists some situations that are not considered overstay; absence from this list does not necessarily mean you have been counted as an overstayer.
These exceptions include:
Entry up to 30 days before the program start date listed on the I-20 is still permitted;
Periods awaiting OPT, during school transfers, progression from undergraduate to graduate or doctoral studies, and regular breaks do not count as overstay;
The Cap Gap period while an F-1 student awaits H-1B processing is unaffected, policy unchanged;
The 60-day and 30-day grace periods after F-1 graduation and J-1 program completion, respectively, remain;
If F-1 or J-1 status is lost but a timely reinstatement application meeting relevant requirements is filed, the time while the case is pending adjudication;
One important note: Even if an F-1 student has been out of status for more than five months, a reinstatement application can still be filed. If a reasonable explanation is provided and the application is approved, it will not count as overstay. However, if the application is ultimately denied by USCIS, overstay will be calculated from the date the applicant’s lawful status actually expired.
USCIS has issued another policy memorandum: To avoid wasting resources, starting September 11 this year, if an application for a US visa is incomplete, the immigration officer may deny it outright. This means that when applying for a US student visa, you must carefully and properly prepare all required documents beforehand; any missing item gives the officer a reason to deny your application.
Before the September 11 visa policy takes effect, anyone applying to immigrate to the US who failed to provide sufficient evidence or documents could receive a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), asking them to submit the missing evidence.
Starting September 11, 2018, for all immigrant/non-immigrant applications and change of status requests received by USCIS, if the initial submission does not meet requirements or lacks complete supporting documentation, the officer may issue a denial without first sending an RFE or NOID.
In other words, previously, even if materials were insufficient, there was still a chance to supplement them and avoid denial.
But under the new rule effective September 11, 2018, the opportunity to submit additional materials is eliminated; those with missing or incomplete documentation will be denied outright.
Those affected by the September 11 US visa rule include:
The new rule covers various immigration benefit categories, including all types of non-immigrant visa/status and immigration applications: for example, H-1B petitions and extensions/change of status, B-1/B-2 change to F-1/F-2, L-1 intracompany transferee visas, O-1 extraordinary ability visas; also family-based petitions (I-130), employment-based immigrant petitions (EB categories), and adjustment of status (I-485), etc.
The September 11 US visa rule could lead to denial under these circumstances:
1. The applicant does not meet eligibility requirements.
2. The applicant submits false or non-compliant materials.
3. The applicant fails to submit all required supporting documents in a single filing.
4. The program for which the applicant applies has been terminated.
According to USCIS leadership, the main goals of the new rule are:
1. To prevent applicants from exploiting existing policy loopholes by filing placeholder applications.
2. To encourage applicants to submit all supporting documents at once, reducing processing time.
Which applicants are not affected by the September 11 visa rule?
1. Applications filed before September 11, 2018.
2. H-1B petitions filed in April 2018 that are still under review.
3. Under preliminary injunctions issued by courts in California and New York, the new rule does not change the policy on RFEs and NOIDs for DACA cases.
