The change in policy on determination of unlawful presence for foreign students will have an impact on the H-1B cap season. The August 9, 2018 USCIS Policy Memorandum results in the accrual of unlawful presence depending on the date of the status violation. Previously, foreign students did not accrue unlawful presence except in limited circumstances. The exact implications of the Policy Memo are yet unknown as of the day of this article as the earliest possible 180-day mark for the 3-year bar will not be reached until February 5, 2019. The unlawful presence bar would require a student to leave the U.S. for the inadmissibility to be triggered. However, upon a change of status request, such as with an application for cap-subject H-1B, USCIS may review an F-1’s lawful status deeper to determine whether lawful status has been maintained.

Practical Considerations for this H-1B cap season:

• A student must maintain a full course of study to remain in lawful F-1 status. Review a student’s academic course load to ensure that the student has remained within the full course of study parameters. A full course of study can have various meanings. Particular attention should be given to English as a Second Language (ESL) school clock hours, online classes, reduced course load, and practical training.
• Ensure that OPT and STEM OPT students are complying with reporting requirements. OPT students are required to report any change of name or address or interruption of employment to the Designated School Officer (DSO). STEM OPT students have additional reporting requirements, including six-month validation reports, self-evaluations, and material changes to the Form I-983 Training Plan.
• Review the F-1 students’ employment records to confirm they are not exceeding unemployment maximums on OPT or STEM OPT.
• The day the student fails to maintain status may be determined by a Department of Homeland Security Officer. Officers consider information in systems available to USCIS, information contained in the foreign national’s record, and information obtained in a Request for Evidence or Notice of Intent to Deny. The foreign national must now become a meticulous record keeper of his or her admission record and maintenance of status history to ensure compliance with lawful status.
• If an F-1 student has violated status, he or she may apply for reinstatement of status within five months. Previously, an F-1 student may discover he or she is out of status after notification from his or her DSO of termination from SEVIS, the web-based system that the Department of Homeland Security uses to maintain information regarding students and other non-immigrants. The Policy Memo states that the student begins accruing unlawful presence the day after an unauthorized activity. Unlawful presence, therefore, may accrue before the student or even the DSO is aware the student has failed to maintain status. The five-month calculation start date on reinstatement allows the F-1 student to toll time in unlawful presence until the petition for reinstatement is adjudicated. If an F-1 student cannot determine the date from which the five-month period is calculated, he or she will not know whether the time during which the reinstatement application is pending is tolled, opening the student to the ramifications of unlawful presence.

It is more important than ever before to conduct a careful review of the F-1 student’s record to ensure maintenance of status before change of status, extension of status or any other immigration benefit is sought.