Status Violations and Unlawful Presence
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(Please note: The information in the following sections is intended for both J-1 students and all other J-1 exchange visitors.)
Falling/being out of status, losing status, and failing to maintain status are different phrases for the same event, and mean that a status violation has occurred. Accruing (accumulating) unlawful presence is the result of failing to maintain status. Consequences include anything from being denied future visas and immigration benefits, to bars from entering the United States and deportation.
If a status violation has occurred, OIP may be able to remedy the situation if we are informed in time. If we reach out about a potential status violation, we require a response immediately. Time is an important factor and the issue needs to be dealt with immediately. Waiting to address the issue may mean we can no longer fix it.
Maintaining status as a J-1 exchange visitor is not difficult. It is imperative to meet with an OIP Advisor for orientation upon arrival, thoroughly read ALL correspondence from OIP (typically sent to the utep.edu or miners.utep.edu account), review the relevant portions of our website, and contact us with questions at any point.
Failing to Maintain Status
An exchange visitor or dependent may fall out of status because he/she:
- Failed to report arrival and/or meet with an OIP Advisor for an orientation session;
- Was a J-1 student who didn’t enroll in or maintain enough credits to be considered full-time, or was dropped from a class that caused him/her to fall below full-time;
- Was fired from the internship or job that was the basis of the program;
- Frequently traveled outside the United States when he/she was supposed to be participating in the J-1 program;
- Did not complete the program or request an extension of the DS-2019 before the end date;
- Worked without authorization from OIP (or USCIS for dependents);
- Remained in the United States beyond the end of the grace period or authorized stay; or
- Failed to maintain health insurance coverage.
OIP may be able to correct the record to get the exchange visitor or dependent back in status after a minor violation. If the situation is more severe and/or not remedied in time, the SEVIS record will be terminated. The exchange visitor will then need to meet with an OIP Advisor to discuss options, which may include applying for reinstatement with DOS or abandoning the program and leaving the United States.
In order to be eligible for reinstatement, the exchange visitor must have NOT:
- Knowingly or willfully failed to obtain or maintain the required health insurance;
- Worked without authorization;
- Been suspended or terminated from the program;
- Failed to maintain valid status for more than 270 days. If he/she failed to maintain status for more than 120 days, evidence is required that the failure was inadvertent or beyond his/her control, and denial of reinstatement would cause unusual hardship;
- Received a favorable recommendation from DOS for a 212(e) waiver; or
- Failed to pay the SEVIS I-901 fee.
If eligible for reinstatement, OIP and the exchange visitor will work together to prepare the application. We will update the SEVIS record to indicate that the application is being made, pay the required fee (currently $367), and submit the documents to DOS. If the reinstatement application is made as a result of an error on exchange visitor’s part, reimbursement of the fee is required before we submit the application.
Exchange visitors may remain in the United States and continue the program while awaiting the decision. If DOS approves the reinstatement, the SEVIS record will be updated and OIP will provide you with a new DS-2019. If DOS denies the application, the exchange visitor must immediately leave the United States.
Leave the United States
In some instances the exchange visitor may choose to abandon the program and leave the United States after a status violation. In other instances it is required, including if he/she:
- Failed to pursue the exchange activities of the program;
- Was unable to continue the program (including suspension or termination);
- Willfully failed to maintain the required health insurance coverage; or
- Engaged in unauthorized employment.
Exchange visitors who are departing the United States due to a status violation or denied reinstatement application must leave immediately and are not granted the standard grace period. Upon leaving the United States, complete the Departure Notification on our Forms page.
Until August 2018, those in F and J status only started to accrue unlawful presence after a formal finding of a status violation by a DHS officer or by an immigration judge. A recent policy memorandum changed when the unlawful presence “clock” starts. For violations that occur on or after August 9, 2018, F and J nonimmigrants begin to accrue unlawful presence the day after the violation, and do not require a formal finding by an officer or judge. While a suit has been filed to challenge this policy, it continues to be in full effect while the case is resolved. OIP will communicate any updates.
Accrual of unlawful presence can trigger a three- or 10-year bar from entering the United States. The length of the bar depends on how much unlawful presence was accrued. Further, a permanent bar can be triggered if an individual is subject to a bar and reenters or attempts to reenter the United States unlawfully (without being admitted or paroled). Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver or another form of relief.
Due to the complexity of the new regulations, exchange visitors MUST consult with OIP immediately if a status violation has occurred. If there is a chance that a significant amount of unlawful presence has been accrued, we strongly advise consulting with an experienced immigration attorney immediately and before leaving the United States.
For more information about the new policy, visit Accrual of Unlawful Presence and F, J, and M Nonimmigrants.