USCIS announced on May 11, 2018 that it intends to make a major policy change relating to how it calculates the accrual of unlawful presence for students and exchange visitors in F, J and M nonimmigrant status in the United States. USCIS is accepting comments on this planned policy change through June 11, 2018, and could modify the policy memorandum depending on the comments received. Unlawful presence is normally defined as being present in the United States after the expiration of one’s I-94 card. Individuals who have accrued more than 180 days of unlawful presence are subject to a three-year bar to admission, while individuals who have accrued more than 365 days of unlawful presence are subject to a ten-year bar to admission.
Under current rules, F, J, and M nonimmigrants are normally admitted for “Duration of Stay” or “D/S.” Because this has no set expiration date, they generally do not accrue unlawful presence in most circumstances absent the denial of a request for an immigration benefit together with DHS or an immigration judge making a formal finding that the foreign national violated their nonimmigrant status. Under the new policy, effective August 9, 2018, F, J, and M nonimmigrants and their dependents present in the United States (whether in duration of status or until a certain date) will start accruing unlawful presence if they fail to maintain nonimmigrant status at the earliest 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, as outlined in 8 CFR 214.2);
- 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 or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).
This planned change in policy subjects foreign national students and exchange visitors to significant new risks of being found to have accrued unlawful presence. Because the new policy guidance states that an F, J, or M nonimmigrant will begin accruing unlawful presence “the day after he or she engages in an unauthorized activity” it is much more likely that an inadvertent status violation could be deemed an even that begins the accrual of unlawful presence. For instance, if a student or exchange visitor performs work without authorization, without realizing it violates status — and even for only a day or two — he or she could be viewed as having engaged in an unauthorized activity that would begin the accrual of unlawful presence. Immigration status is incredibly complex and often these individuals are unaware that innocent, normal activities can be viewed as a violation of status. Should this new policy be implemented as planned, foreign nationals in F, J, or M status will need to be particularly careful regarding their activities in the United States to avoid inadvertent accrual of unlawful presence.
Please contact SPS Immigration PLLC if you have questions about how this policy might affect foreign national students or exchange visitors.