As we reported in June 2018, US Citizenship and Immigration Services (USCIS) released a policy memorandum, proposing a change in how to determine “unlawful presence” for individuals on educational or exchange visas (F-1, M-1, J-1) in the US. The new policy goes into effect on August 9, 2018.
Unlawful presence occurs when an individual stays in the US after the expiration of the period of stay authorized by the Department of Homeland Security (DHS), or any presence without being admitted or paroled – frequently referred to as an “overstay”.
Foreign nationals who remain in the U.S. beyond the expiration date of their stay may be subject to penalties. Previously, due to the special nature of the academic programs, F-1, M-1, J-1 students and exchange visitors and their dependents would not begin to accrue unlawful presence until a formal determination had been made by a government authority informing the student that he/she is unlawfully in the United States.
The new policy states that students begin to accrue unlawful presence if they fail to maintain their status on the earliest day of any of the following:
(i) The day after they no longer pursue the course of study or engage in an unauthorized activity;
(ii) The day after the grace period, if any, such as completing the course of study or authorized practical training;
(iii) The day after the I-94 form expires;
(iv) The day after an immigration judge or the Board of Appeals (BIA), ordered the individual excluded, deported or removed whether or not the decision is appealed.
The legal consequences of unlawful presence may lead to a denial of admission. Individuals who depart the U.S. after accruing more than 180 days but less than 365 days of unlawful stay will trigger a 3-year bar to admission and individuals who depart the U.S. after accruing over 365 days of unlawful stay will trigger a 10-year bar to admission.
In addition, those individuals who are subject to the 3-year bar and 10-year bar may also not be eligible to apply for visa, admission or adjustment of status unless they are eligible for a waiver. It is important to obtain a valid visa and avoid to accrue unlawful presence.
Here are some tips to keep you on the right track:
1) Valid I-94 form and visas for F-1, M-1, J-1 students or exchange visitor students;
2) Have all the documentation available, regarding address change or legal name change;
3) Pay attention to the dates, especially the grace period dates.
Please contact our office if you have any questions and concerns about this new policy.