New Rules to Determine Your Unlawful Presence in the U.S.
On August 9, 2018, USCIS has issued the final version of the policy memorandum regarding accrual of unlawful presence and F, J, and M visa holder.
The new policy provides guidance to USCIS officers in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States. These guidelines are effective August 9, 2018 and supersedes the previous policy.
Under the former policy, an alien admitted as a student or exchange visitor who overstayed or violated such status did not immediately begin accruing a period of unlawful presence for purposes of inadmissibility. Nevertheless, such alien was illegally present in the United States and would be amenable to removal proceedings. However, the alien did not face any future inadmissibility. For a better understanding of the difference between unlawful status and unlawful presence, click here.
Now, unless the nonimmigrant is otherwise protected from accruing unlawful presence, F, J, and M nonimmigrants (and their family members, admitted as dependents, if any) begin accruing unlawful presence due to a failure to maintain their status on the earliest of any of the following:
• The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);• The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).
F, J, or M visa holders who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of the following:
• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed).
Foreign students and exchange visitors need to be aware of this change of policy for the purpose of accruing unlawful presence in the U.S. Call our firm today and schedule an appointment with an immigration attorney to see what your options are to avoid removal and inadmissibility.