On August 9, 2018, USCIS issued a memorandum on how unlawful presence would be calculated for student visa holders in F, J, and M status. Before the memo was issued the student would not begin to accrue unlawful presence until the day after a formal finding was made by the government. Under the new memo, which remains in effect, despite pending litigation in the federal courts, if an F-1 student is found to have failed to maintain status, the student will begin to accrue unlawful presence on the day after he or she engaged in the “unauthorized activity” that caused the status violation. In other words, the memo requires unlawful presence to be calculated retroactively in the event that a student is found to be in violation of their status.
The end result is that student visa holders may be subject to a three year bar to re-entry to the U.S. if they have been found to accumulate more than 180 days of unlawful status or a 10 year bar for those who have accumulated more than a year of unlawful presence. February 5, 2019 is the 180th day from the date the memo took effect. In order to avoid the bar to returning to the U.S., student visa holders who have received a denial of a change of status may considering leaving the U.S. prior to February 4, 2019. If you believe that you have not maintained your F-1 status or have a pending petition to change status to F-1, schedule an appointment with a DMCA attorney to advise you on your options.
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