The U.S. Citizenship and Immigration Services (USCIS) recently issued policy guidance that changes the way it calculates unlawful presence for foreign students and exchange visitors in F-1, J-1, and M-1 nonimmigrant status, as well as their F-2, J-2, and M-2 dependents.
Under the previously established policy, the accrual of unlawful presence for F, J, and M nonimmigrants would begin only after USCIS formally found a nonimmigrant status violation. The new policy, effective August 9, 2018, provides that the conclusion of authorized activity or the initiation of unauthorized activity would also trigger the accrual of unlawful presence.
The effect of this policy reversal could be profound for students and exchange visitors who allow their authorized period of stay to lapse or who inadvertently violate their nonimmigrant status. Those who accrue 180 days or more of unlawful presence may become subject to either a three-year bar or a ten-year bar on re-entry to the United States. In certain circumstances, the accrual of unlawful presence could ultimately result in a permanent bar from re-entering the U.S.
For F-1, J-1, or M-1 nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, accrual of unlawful presence based on that failure will begin on August 9, 2018 (unless unlawful presence had already started accruing based on former policy).
For F-1, J-1, or M-1 nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018, USCIS will calculate unlawful presence starting from 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);
- 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).
For F-2, J-2, or M-2 nonimmigrant dependents, the authorized period of stay may end when:
- The F-1, J-1, or M-1 nonimmigrant’s authorized period of stay ends; or
- The dependent’s own circumstances or conduct ends the period of authorized stay.
NOTE: The policy for determining unlawful presence for those present in the United States who are not in F, J, or M nonimmigrant status remains unchanged.
Given the complexity of the visa process and the trend toward more stringent penalties, it may be in the best interest of students and exchange visitors, as well as Designated School Officials, exchange program administrators, and affected employers, to enlist the help of an experienced immigration law firm.
Founded in 1930, Barst Mukamal & Kleiner LLP Attorneys at Law works with students, exchange visitors, nonimmigrant visa holders, and applicants at every phase of the process. If you are concerned about ongoing USCIS policy changes that may impact your status, contact the New York office of BMKLLP toll-free at (888) 506-1291 to schedule an appointment, or visit us online at http://bmkllp.com.