What does the new USCIS Unlawful Presence Guidance Mean to YOU?

Are you a Student (F), Vocational Student (M) or Exchange Visitor (J) Principal or Family Member Nonimmigrant Visa Holder?  What does the new USCIS Unlawful Presence Guidance Mean to YOU?

With the creation of USCIS, many of the predecessor agency’s (INS) policies and procedures were maintained and continued.  Beginning in 1997, an INS policy found that individuals admitted to the United States in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) statuses for “duration of status” began accruing unlawful presence only after INS found a violation of nonimmigrant status or when the individual was ordered excluded, deported, or removed. Further, those in these categories admitted with a date certain expiration began accruing unlawful presence the day after the expiration date annotated on the entry document (Form I-94). This longstanding policy remained until an announcement this spring of change this month.

On May 10, 2018, USCIS posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status.  The new policy memo created questions and fear for those currently or previously in F, J, or M status and their derivative family members.

Under the new policy, which went into effect on August 9, 2018, nonimmigrants in F, J, or M status and their derivative family members were subjected to the following changes:

Failure to maintain F, J, or M status as a principal or derivative

• An individual who has failed to maintain their F, J, or M status (and their derivative family) before August 9, 2018, will begin accruing unlawful presence on that day. There is no need for any formal finding by USCIS or an Immigration Judge.  If an individual is no longer pursuing the course of study or authorized activity, has completed the course of study or authorized activity (including any grace period) or engaged in an unauthorized activity, as of August 9, 2018, unlawful presence is accruing.
• An individual who fails to maintain F, J, or M status (and their derivative family) on OR after August 9, 2018, will begin accruing unlawful presence on: the day after the individual is no longer pursuing the course of study or authorized activity, has completed the course of study or authorized activity (including any grace period), engages in unauthorized activity, or has a formal finding by USCIS or an Immigration Judge.
• Family members in derivative status will be out of status with any of the above at the same time of the principal F, J, or M status holder – with or without explicit knowledge of the principal nonimmigrant visa holder’s violation of status.

USCIS posted a revised policy memorandum on August 9, 2018, regarding the unlawful presence calculations for these categories. This revision did not change the above but provided additional guidance on calculating unlawful presence for those who timely file a request for a reinstatement with the appropriate adjudicating body and the effect of an approval or denial on the calculations. See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

Unlawful presence can have life-altering effects on individuals and their families.  An individual present in the U.S. for more than 180 days (accrued 181+ days of unlawful presence) will trigger a 3-year bar to returning to the U.S. at their departure.  The outcome is even more detrimental if an individual remains longer than 1 year and departs.  That departure will trigger a 10 year bar to return to the United States.

This policy change has an impact on all of those individuals currently present in the U.S. in F, J, or M status as either a principal or derivative nonimmigrant, as well as those considering coming to the United States in these categories.  If you have questions or are concerned about your nonimmigrant status, please contact our office for a consultation.