Unlawful Presence Announcement
UPDATE, PLEASE NOTE: Effective February 6, 2020 a federal district court permanently blocked the August 9, 2018 “unlawful presence” policy. Unlawful presence meant that DHS would begin to track the days a student or scholar fell out of status. This unlawful presence would accrue the day the student or scholar fell out of status and could lead to three years, ten years, or even permanent “bars” on returning to the U.S. This was fuzzy as a student could learn of their violation after having already accrued time.
The court found that USCIS’s policy was unlawful as it failed to go through procedures of the Administrative Procedures Act (APA) and it was such declared invalid. This ruling applies to all applications, nationwide.
What does this mean?
This outcome permanently prohibits USCIS from applying its unlawful presence policy. When international students now violate their status they are notified and may then choose to remedy the issue or depart the country, without running the risk of a potential reentry bar.
Effective August 9, 2018, the Department of Homeland Security (DHS) has put into place a major change in policy regarding unlawful presence for F, J, or M visa holders and their dependents.
DHS will begin to track “unlawful presence” for F, J or M visa holders who have violated their status. Those who accrue unlawful presence can be subject to “bars,” or restrictions on returning to the U.S., for three years, ten years, or even permanently.
What does this mean?
- If a student or scholar violates their status, DHS will immediately consider the student to be unlawfully present in the United States.
- DHS will track the number of days a student is unlawfully present.
- If a student is unlawfully present for 180 days or more, they may be banned from returning to the United States. Students may also be subject to detention and immigration court proceedings.
The Final Policy Memorandum, posted August 9, 2018 may be read here by clicking here.
Important Information for Students, Advisors, and Campus Partners
Please expand the sections below ("What Students Should Know" and "What Advisors and Campus Partners Should Know") for more important information about these recent government policy changes.
Click to expand:
As an F-1 or J-1 student or scholar, it is critically important to be aware of your immigration status and ensure you are doing everything you can to follow all of the required rules and regulations regarding your visa. Recent policy changes from the Department of Homeland Security (DHS) emphasize the need for students to carefully follow the rules of their visa.
WHAT SHOULD YOU DO?
- DO make sure you know and follow all the rules and regulations of your visa. Consequences for not following the regulations may be severe.
- DO enroll full-time, unless you have permission from ISSS to enroll in less than full-time. Full-time enrollment for undergraduates is 12 credits and for graduates is 9 credits of coursework or 3 thesis credits.
- DO enroll in the correct amount of in-person classes vs. online classes.
- Undergraduate students MUST enroll in a minimum of 9 credits which require physical presence
- Graduates must enroll in a minimum of 6 physical presence credits
- *Additional online courses are permitted, however they will not count toward the minimum physical presence requirements
- DO NOT work or volunteer, especially off campus, without authorization from ISSS, whether that opportunity is paid or unpaid. Volunteer work is acceptable in certain situations, but you should check with ISSS to make sure you are not violating your status.
- DO attend classes to ensure that you do not receive an unofficial withdraw (EU grade). Courses with EU grades do not count toward the full-time enrollment requirement.
- DO make sure all of your immigration documents are up to date and valid. The two most important documents, your I-20 and passport, MUST be valid at all times. (Your visa page in the passport may expire after you enter the U.S. The visa is solely an entry document and does not govern your valid status.)
- DO apply to extend your I-20 BEFORE it expires if you need more time to complete your studies.
- DO get help if you are having difficulty in classes. Suspension from the University due to low grades or academic misconduct will result in your immigration record falling out of status.
- DO ask ISSS if you have a question, concern, or problem.
- DO check your university email REGULARLY and respond to any communication from ISSS.
REMEMBER: if you do not follow the rules for your visa, you will be considered "out of status” and this may result in unlawful presence in the U.S. and possible bars to reentry to the U.S.
WHAT SHOULD YOU DO IF YOU BREAK ONE OF THE IMMIGRATION RULES OR HAVE A PROBLEM?
We strongly encourage all students to be aware of their status and take the responsibility to carefully follow all of the rules regarding their visa, but ISSS is here to help students who need guidance!
Contact ISSS immediately if you are concerned about your status or if you receive a notification from our office about your status. We understand that people make mistakes. We also understand the idea of falling out of status and not being able to stay in the U.S. to complete your studies is a very upsetting and scary situation.
Many students may feel anxious about discussing problems because of pressure or disappointment from their parents or family. It can seem easier to ignore the situation, even to the extent of staying in the U.S. and pretending to still be attending school. However, this makes the problem much worse.
We understand it is often difficult to ask for help or tell someone if there is a problem; however, it is extremely important to communicate immediately with ISSS if you fail to follow the rules or if we contact you regarding your status.
Don’t ignore notifications from ISSS about your immigration status. With this new
rule in place, the consequences of not following the rules and regulations, as well
as ignoring any notifications or emails regarding your status, will be very serious;
therefore, the sooner you can work with us to attempt to resolve the issue, the better.
ISSS’s advice to students is to be honest, deal with problems immediately, and absolutely do not attempt to "hide" your immigration status problems by staying in the U.S. without legal status hoping your friends or parents will not find out.
If you have any questions, please contact the ISSS office! General questions may be directed to our email at international@utah.edu or you can call 801-581-8876 to set up an in-person appointment with one of our advisors.
ISSS greatly values its cross-campus partnerships and acknowledges the important roles that departments, advisors, and other campus partners play in the lives of our international students. We know that YOU are a big part of helping these students be successful!
In light of these government policy changes, here are a few ways we can use your help in serving our international students:
- Refer students to ISSS for questions- With this major change in DHS policy, we want to make sure all students are following the regulations correctly. Because immigration regulations can be very complex and situations vary based on individual circumstances, please refer students to our office.
- Refer students to workshops- ISSS hosts a number of workshops each semester that discuss the basics of work authorizations. These information sessions are an important way for students to stay up-to-date on the regulations regarding employment. Workshop dates and times are posted on our website (isss.utah.edu) under the News & Events section. Departments are welcome to attend!
- Contact ISSS with any questions! If you have any questions, please feel free to reach out to our office. You can reach us at 801-581-8876 or international@utah.edu. Advisors are available daily to answer questions from departments.
Look Out for Advising Red Flags
When advising an international student, you may notice one of the following situations below. These are often warning signs that a student is not following the visa regulations or is having difficulty maintaining their visa status. Keep an eye out for these topics and please refer students to ISSS if you notice a problem.
- Student is not enrolled in full-time credits. All international students are required to enroll full-time in the Fall and Spring semester. Full-time for undergraduates is 12 credits and for graduates is 9 credits or 3 thesis credits. Summer semester is a vacation semester that does not require full-time enrollment.
- Student has enrolled in a lot of online courses. International students are allowed to take as many online courses as they wish, but
not all online courses may count toward their full-time requirement:
- Undergraduate students MUST enroll in a minimum of 9 credits which require physical presence
- Graduate students MUST enroll in a minimum of 6 physical presence credits. Thesis students must enroll in a minimum of 3 physical presence credits.
- Student has expressed that they would like to work. Work is one area where students must be extremely careful, as it is an area that is closely monitored by DHS. Students must ALWAYS seek authorization from ISSS prior to starting any off-campus employment, whether that opportunity is paid or unpaid. Students who are authorized for employment must follow all of the rules regarding work outlined in our CPT and OPT
- Student has been missing classes or wants to withdraw. Students who withdraw from courses OR have missed classes and receive an EU grade may fall below full-time enrollment limits, which will impact their visa status.
- Student has experienced, or is experiencing, a difficult life situation. There are a few regulatory exceptions for students who are struggling with certain language/academic issues, as well as students experiencing medical or mental health issues. Students may speak to an ISSS advisor to see if they qualify for a reduced-course load authorization.
- Student has been academically suspended. While academic warnings or probations do not affect a student’s visa, suspension from the University will directly affect a student’s immigration status because they are unable to meet enrollment requirements.
- Student’s program is ending. All students must report their program end date to ISSS. Students who need more time to complete their studies must file for an extension before their immigration documents expire. ISSS notifies students whose documents are expiring.