By Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
Last month USCIS issued a new policy memorandum which changes the way the agency will determine the accrual of unlawful presence for students in F, J, M status and their dependents while they are in the United States. The new policy is expected to go into effect on August 9, 2018 and according to USCIS this policy is in furtherance of President Trump’s Enhancing Public Safety in the Interior of the United States Executive Order and the Buy American Hire American Executive Order.
How Can a Person Accrue Unlawful Presence in the U.S.? Unlawful presence can usually be accrued in three different ways.
1. If a person entered the U.S. without being inspected by an immigration officer. In this circumstance every day that he or she is in the U.S. it will be considered as unlawful presence.
2. If a person first entered the U.S. lawfully with a temporary immigration status but then remained in the U.S. after their temporary status expired. Each day of overstay is considered unlawful presence.
If a person accrues unlawful presence it is a big problem because it may affect a person’s ability to apply for immigration benefits in the future. People who are subject to a 3-year, 10-year, or permanent bar to admission as a result of accrued unlawful presence are usually not allowed to apply for a visa, admission, or adjustment of status to permanent resident unless they are eligible for a waiver of inadmissibility or another form of relief.
Under the old policy, a person who entered the U.S. for the duration of status (D/S) did not start accruing unlawful presence until the day after USCIS formally found a nonimmigrant status violation had occurred or an immigration judge ordered the applicant excluded, deported, or removed. Now under the new policy, unlawful presence will accrue starting from August 9, 2018, for any F, J, or M nonimmigrant who continue to remain in the US.
F, J, or M Nonimmigrant who fail to maintain nonimmigrant status before August 9, 2018:
An individual in F, J, or M nonimmigrant status who did not maintain their status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless they already started accruing unlawful presence on the earliest of the following:
• The day after the U.S. Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the person had violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the individual’s Form I-94 Arrival/Departure Record expired, if they were admitted until a certain date; or
• The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered the individual excluded, deported, or removed (whether or not the decision was appealed).
F, J, or M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018: An individual in F, J, or M nonimmigrant status who has failed to maintain their status
on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
• The day after the F, J, or M nonimmigrant no longer pursues the course of study or authorized activity, or the day after the person 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 individual’s Form I-94 Arrival/Departure Record expires, if they were admitted until a certain date; or
• The day after an immigration judge or, in certain cases, the BIA, orders the individual excluded, deported, or removed (whether or not the decision is appealed).
The period of stay authorized for an F-2, J-2, or M-2 nonimmigrant dependent (spouse or unmarried child under the age of 21) admitted for D/S or for a certain amount of time is contingent on the principal nonimmigrant. A dependent’s period of authorized stay ends when the principal’s authorized period of stay ends. The dependent’s authorized period of stay may also end due to their own conduct or circumstance.
Since the new rules will not take effect until August, students have a few months to take action to avoid falling under the three and ten year bars. USCIS is still accepting comments on the new policy memorandum until June 11, 2018.