Due to a new policy, international students have a higher risk of being "unlawfully present" in the United States.

International Students: Are You Unlawfully Present in the United States?

Are you “unlawfully present” in the United States? On August 9, 2018, the United States Citizenship and Immigration Services (USCIS) implemented a new policy regarding what is called “unlawfully present” particularly for exchange and foreign students in the U.S. The change has many students concerned.

First, “unlawfully present” is used to describe the status of students who spend some time in the U.S after their period of authorized stay has ended. The new USCIS policy states that a student or foreign exchange student will be tagged “unlawfully present” in the U.S the day after their visas or legal status expires. At this rate, many of these individuals will be under this status faster than with the previous policy.

Previously, students could extend their stay under a term called “duration of status”. This allowed students some more time and flexibility, as there are just too many things that can cause a delay in leaving the country, completing their studies, etc.

With this change, many students will not be aware they have fallen into the “unlawfully present” status. If someone accumulates 180 days of being unlawfully present, they could be banned from entering the United States again for three years. If someone is unlawfully present for one year or more, they are banned for 10 years.

After receiving feedback from the public back in May 2018, USCIS did implement one option that could help students. A student can file a “reinstatement of status” application within five months of being unlawfully present. Then the status will only begin if the student is denied the application. The student or exchange visitor will not accrue unlawful presence status during the time the request is pending.

Why would USCIS make such a policy change? USCIS reported that based on their data, the number of students or exchange visitors who stayed beyond their period of authorized stay (overstays) was significantly higher between 2016 and 2017. Department of Homeland Security (DHS) has however pointed out some flaws to the data presented by USCIS. DHS explained that among these “out-of-country overstays” are people who only stayed a day longer because their flight was delayed or those who were sick.

If you have any questions about your status or if you are “unlawfully present” in the United States, do not wait! Contact your international student advisor as soon as possible to make sure you stay within status.

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