Sweeping Changes in USCIS Policy on Accrual of Unlawful Presence for F, J, and M Nonimmigrants

The U.S. Citizenship and Immigration Service (USCIS) released a new Policy Memorandum on May 11, 2018 that supersedes and drastically changes long-standing policies regarding the accrual of unlawful presence for foreign students (F visa holders), exchange visitors (J visa holders), vocational students (M visa holders), and their dependents. This new policy is slated to go into effect on August 9, 2018. This shift in interpretation comes on the heels of President Trump’s January 2017 Executive Order, “Enhancing Public Safety in the Interior of the United States,” which aims to reduce the number of overstays and those who violate the terms of their visas.

Under the former USCIS policy, an F, J, or M nonimmigrant admitted for duration of status (D/S) who overstayed or violated D/S did not immediately begin accruing unlawful presence absent a USCIS finding of a status violation, or upon issuance of an order of removal, deportation, or exclusion by an Immigration Judge, which was rare. Further, mere status violations did not trigger unlawful presence. The new policy states that on or after August 9, 2018, those F, J, or M nonimmigrants admitted in D/S or admitted for a date certain, start accruing unlawful presence on the day after any of the following:

• The F, J, or M nonimmigrant no longer pursues the course of study or authorized activity, or the day after he or she engages in an unauthorized activity;
• The F, J, or M nonimmigrant completes his/her course of study or program (including any authorized practical training or grace period);
• Form I-94 expires; or
• An immigration judge (or BIA) enters an order for removal, deportation, or exclusion.

Unlawful presence is defined as presence in the U.S. after the expiration of the authorized period of stay. The accrual of unlawful presence is significant because it can impact a person’s ability to apply for immigration benefits and triggers bars to future admission. Individuals who accrue more than 180 days of unlawful presence and then depart the U.S. may be subject to a three year bar from readmission, and those individuals who accrue more than one year of unlawful presence may be barred from readmission for 10 years.

The USCIS is accepting comments on this new Policy Memorandum until June 11, 2018. Please contact one of our immigration attorneys immediately if you believe your F, J, or M nonimmigrant employee may be affected by this drastic change in policy interpretation.