USCIS Changes Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors!
On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) published a policy memorandum changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.
The policy will go into effect on August 9, 2018.
Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will 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 nonimmigrant 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 three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.
USCIS is currently accepting comments on the policy memorandum. The 30-day public comment period closes on June 11, 2018.