14 May

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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