Unlawful Prsence Memo – Major Impact on Day 1 CPT & F1 Visa Students


Here’s a look at various scenarios and solutions, and discussed. Certain students on F1 Visa can potentially face 3 years ban starting Feb 5, 2019, due to the unlawful presence memo that went into effect on Aug 9, 2018.

Let me ask you this – Do you know for sure you are not accruing unlawful presence?

Here’s the biggest mystery factor!

You would not know that there was a status violation until USCIS is processing their OPT, STEM OPT or F1 to H1B Visa Status or some form of a petition.

According to the memo, if the Violation has occurred before August 9, 2018, guess what?

You have started accruing unlawful presence in the USA from Aug 9, 2018, and you could be subject to 3 years ban!

Here are the two articles I published back in 2018 (May/June)

Recently (end of Jan 2019), one well known and a prominent Immigration Attorney is suggesting some F1 Students depart the USA by Feb 5, 2019, or risk facing 3 years ban.

As I’m looking over the F1 Visa, OPT & STEM OPT Facebook Group, there’s not a lot of chatter around this.

But the legality of enrolling in the Second Masters and using the Day 1 CPT program came under the lens after students enrolled in the University of Farmington were arrested.

Are You Accruing Unlawful Presence?

My goal is to create awareness around this issue so that you can take the necessary step and avoid 3 or 10 years ban.

After yesterday’s Facebook Live with Immigration Attorney Jack Sung, several students posted questions using the Ask An Immigration Attorney and here’s one such question –  “Have I Accrued Unlawful Presence?”

f1 visa day 1 cpt Have I accrued unlawful presence

As per, the Unlawful Presence Memo, certain F1 Visa students who have accrued over 180 days of unlawful presence, could face 3 years ban from the USA upon departure from the USA.

If the status violation had occurred before Aug 9, 2018, such students could be accruing the unlawful presence status starting Aug 9, 2018.

After 180 days of accruing unlawful presence, which is on Feb 5, 2019. Those students could face 3 years ban from entering the USA when they depart the US.

Day 1 CPT vs Status Violation

So, hows do the Status Violation occur? Why students using 12+ Months of CPT are getting RFE or COS Denial?

12 or more month cpt ref change of status denial uscis

Immigration Attorney Jack Sung did a Live Webinar and offered multiple solutions based on situations typically faced by F1 Visa Students using Day 1 CPT route to stay in the USA and continue to work.

Worry not if you missed the live event. You can get access to the recorded version of the Guide to Unlawful Presence Memo for F1 Students with easy to understand solutions.

Depart the USA before Feb 5, 2019?

I have created a visual guide based on my understanding of this article by an Immigration Attorney.

He suggests the following:

  • Certain F1 students should depart the US before Feb 5, 2019.
  • Others to take precaution and identify if they have accrued unlawful presence.

unlawful presence memo f1 visa status flowchart

To my best of knowledge, I have created the above flowchart.

Because more than one Immigration Attorney has recommended certain F1 students who are at the risk of accruing 180 days on Feb 5, 2019, to depart the USA.

And, there is a pending lawsuit.

If the preliminary injunction is granted by February 4, 2019, students who have been accused of violating their status, especially those contesting erroneous allegations, can breathe easy for now as they do not have to make plans to depart by February 5.

In the meantime, if you think you may be impacted, especially if you are on Day 1 CPT, utilizing CPT in the Second Masters to carefully understand and evaluate your options.

And others, if you think you may have violated the status, understand and know your options.

I think it’s better to get an answer today and before Feb 5, 2019, than feeling sorry later. Right?

All you need to know is answer to the following question:

“I have engaged in Activity X, Y and Z. Is it a violation of F1 Visa Status as per USCIS, Can there be an RFE and do I have all the documents and win the RFE?”

Deep down, if you know what you are doing or planning to do, is even borderline pushing the envelope of status violation, please reconsider that and talk to an attorney.

Your employer’s attorney should be your first stop. If you don’t have access to an attorney or not sure who to talk to, you can Talk to Attorney Sung or Shah using Ask An Immigration Attorney.

Impact Due to Unlawful Presence Memo on F1 Students

During the live webinar, Immigration Attorney Jack Sung discussed several scenarios and potential solutions.

Here’s a look at various scenarios that was discussed.

more than 12 months cpt scenarios


More than the scenarios, what are the possible solutions for each scenario?

How does that specifically impact you? You can get access to the Unlawful Presence Memo Guide for F1 Students, a recorded version of the event with bonus contents here.

In short, the options included the following:

  • Be prepared for RFE’s (if impacted)
  • For some departing, the USA would be better
  • Be prepared to fight via MTR (& it could be expensive for students)
  • Gather as many documents as you can today, to avoid future problems.