Court has put a stay on implementing the USCIS unlawful presence rule starting Aug 9, 2018 that caused issues for international students. They cannot use this policy now until the court case reaches the result.
Colleges say Students Exposed to 3 to 10 Year Ban
The lawsuit was filed by many universities claiming that the rule was not made after going through regulatory process.
The colleges argued that the rule has been intentionally designed to bar thousands of F, J, and M visa holders each year from re-entering USA. The start of status violation from back date will result in 3-10 years bars.
DHS had filed a motion to dismiss the lawsuit on January 10, 2019 with the claim that colleges have no right to file lawsuit as they are not the affected party. It is the students who are at receiving end.
The colleges also filed a motion for preliminary injunction on December 14, 2018 requesting that the memo should be suspended while the court decision is pending.
Court has blocked the implementation of unlawful presence rule giving relief to thousands of students after analyzing that the policy change indeed conflicts with the Immigration & Nationality Act.
USCIS Unlawful Presence Policy
USCIS policy change was made to count the F1 student’s unlawful days in US from the date it first violated the visa terms.
Before the policy change, USCIS used to count the status violation days starting the day they found the violation of F-1 status. The students were safe until this date as the unlawful presence would not have started from previous days.
If USCIS finds anytime in future that a student had violated his student visa terms by enrolling into day 1 CPT, the whole time from start to today would be counted as ‘unlawful presence’.
This is crucial in case an F1 student files an H1B application in lottery. If USCIS decides that F1 student was not studying or have worked outside of what is legally allowed, they can mark the period as ‘violation of status’.
This violation of status would have started from past date that the student probably started using F1 visa. This affects the H1B approval in case the past date is already 180 days old.
Your H1B might be approved but due to the status violation, USCIS will not issue new i94. To get new i94, you would need to go out of USA and once you go out, you are automatically barred from re-entering USA for 3 years.
What can happen with Unlawful presence?
- You can be placed in removal proceedings meaning deportation.
- It will be more difficult for you to obtain any future US visa.
- It is possible that your H1B visa “stamp” is automatically invalidated.
- If you keep staying for more than 180 days, you can be barred for 3 years from coming back, when you actually leave.
- If you keep staying for more than 365 days, you can be barred for 10 years from coming back, when you actually leave.