USCIS Releases Policy Memo on Accrual of Unlawful Presence for F, J, and M Nonimmigrants

On May 10, 2018, United States Citizenship and Immigration Services (USCIS) released a policy memorandum that fundamentally changes the way in which foreign students (F and M visa holders) and exchange visitors (J visa holders) are considered "unlawfully present."  The announced changes will take effect beginning August 9, 2018.

The new policy states that any F, J, or M nonimmigrants, along with their dependents, who have been admitted to the United States for duration of status (D/S) who are not already considered "unlawfully present" under existing USCIS policy and who failed to maintain their nonimmigrant status before August 9, 2018 will begin accruing unlawful presence due to that failure beginning on August 9th .

Under the new guidelines, on or after August 9, 2018, any F, J, or M nonimmigrant will begin accruing unlawful presence based on the following:

  1. The nonimmigrant has ceased a course of study or the activity authorized in the nonimmigrant’s status and/or the day after the immigrant has engaged in any unauthorized activity.
  2. The completion of a course of study or program (this includes any authorized training along with the permitted grace period).
  3. The expiration of the Form I-94 or the specified date of the immigrant’s admission has passed.
  4. An immigration judge or the BIA has ordered that an alien be excluded, deported, or removed.

The above interpretations regarding unlawful presence also apply to Canadian B1/B2 nonimmigrants who are admitted as "non-controlled nonimmigrants."

"Unlawful presence" is an important concept as an individual who has accrued more than 180 days of "unlawful presence" and departs the U.S. is barred from returning to the U.S. for three years.  An individual who has been "unlawfully present" for 365 days or more is barred from returning for ten years.  Although waivers are possible for certain "barred" individuals, they can be difficult and unpredictable to obtain.

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