14 May 2018

USCIS Changing Policy on Accruing Unlawful Presence for Students and Other Visa Categories

U.S. Citizenship and Immigration Services (USCIS) has recently posted a policy memorandum indicating that they want to change how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M non-immigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.

This is another policy position that was unveiled citing the Government’s attempt to meet the President’s Executive Order to enforce Immigration laws is intended to go into effect on August 09, 2018.

The proposed rule, if it passes, will dramatically change the laws for people on F, J or M Visas. For instance, a student present on F-1 visa may be in violation of their status, but not accrue unlawful presence if they fail to maintain a full course load; work illegally, or even if employed on OPT are employed in an area outside of their chosen field of study.

By contrast, the new rule essentially makes violation of status force a student to automatically accrue unlawful presence! If passed, the policy would make individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her non-immigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage 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 I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States.

The 3 and 10 year bars were created as a part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.Incorporated into section 212(a)(9)(B) of the Immigration and Nationality Act (INA), the statute imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully.

Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the United States for 3 years; those who accrue more than one year of unlawful presence are barred for 10 years.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

Urgent Call to Action: USCIS is accepting comments on the policy memorandum. The 30-day public comment period has begun and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page. Please send in your comments before June 11, 2018.

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26 Oct 2016

Temporary Protected Status (TPS) Extended for Nepal till June 2018

The United States Citizenship & Immigration Services (USCIS) announced yesterday that they would automatically extend TPS for Nepal through June 28, 2018

Re-Registering for TPS:

For those that already have TPS, you MUST re-apply between October 26, 2016 through December 27, 2016 to maintain status

If you are a TPS beneficiary under the Nepal designation and your EAD is based on your TPS status with an original expiration date of December 24, 2016, your EAD is covered by this automatic extension.

To prove that you are authorized to continue working legally, you may show the following documentation to your employer and government agencies:

  • Your TPS-related EAD with a December 24, 2016 expiration date; and
  • A copy of the Federal Register notice announcing the automatic extension.

Late Initial Filing for TPS
You can apply for TPS for the first time during an extension of your country’s TPS designation period. If you qualify to file your initial TPS application late, you must still independently meet all the TPS eligibility requirements listed in the Eligibility section for Nepal.

To qualify to file your initial TPS application late, you must meet at least one of the late initial filing conditions below:

  • During either the initial registration period of Nepal’s designation or during any subsequent initial registration period if Nepal was re-designated you met one of the following conditions, and you register while the condition still exists or within a 60-day period immediately following the expiration or termination of such condition
    • You were a non-immigrant, were granted voluntary departure status, or any relief from removal
    • You had an application for change of status, adjustment of status, asylum, voluntary departure, or any relief from removal which was pending or subject to further review or appeal
    • You were a parolee or had a pending request for re-parole
    • You are a spouse of an individual who is currently eligible for TPS

OR

  • During either the initial registration period of  Nepal’s designation or during any subsequent initial registration period if Nepal was re-designated you were a child of an individual who is currently eligible for TPS. There is no time limitation on filing if you meet this condition. So if your parent is currently eligible for TPS and you were his or her child (unmarried and under 21 years old) at any time during a TPS initial registration period for Nepal, you may still be eligible for late initial filing even if you are now over 21 years old or married.  You may file during an extension of Nepal’s TPS designation time period.

Eligibility Criteria for Nepalese

In order to be eligible for TPS as a Nepali National, you MUST:

Continuous Physical Presence and Continuous Residence in the United States since June 24, 2015

You may NOT be eligible for TPS or to maintain your existing TPS if you:

  • Have been convicted of any felony or two or more misdemeanors committed in the United States;
  • Are found inadmissible as an immigrant under applicable grounds in INA section 212(a), including non-waivable criminal and security-related grounds;
  • Are subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity;
  • Fail to meet the continuous physical presence and continuous residence in the United States requirements;
  • Fail to meet initial or late initial TPS registration requirements; or
  • If granted TPS, you fail to re-register for TPS, as required, without good cause.

 

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