USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors

On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) published a final policy memorandum revising the rules for calculating unlawful presence for those in student F (student), J (exchange visitor), and M (vocational student) nonimmigrant status and their dependents while in the United States.

Most non-immigrant visa holders are admitted until a certain date, which is listed on their I-94 arrival/departure form. Students and exchange visitors are typically admitted for “duration of status” or D/S (the time during which a student is pursuing a full course of study at an educational institution). D/S status can make a determination of the date when a person fails to maintain status complex. To make an unlawful presence determination, USCIS will look to all systems available to the agency such as SEVIS, information in the individual’s record (such as unauthorized employment) and denials of reinstatement or change of status to another nonimmigrant status.

For F, J, and M nonimmigrant status violations that occurred before the effective date of this policy, USCIS will calculate unlawful presence from August 9, 2018. The policy for determining unlawful presence for individuals present in the United States who are not in F, J, or M nonimmigrant status remains unchanged.
Penalties for Unlawful Presence can have a huge impact. More than 180 days of unlawful presence during a single stay but less than a year accrues a 3-year bar to entering the US. More than a year of unlawful presence during a single stay is subject to 10-year bar on admission.

Under the policy memorandum, F, J, and M nonimmigrants who fall out of status on or after August 9, 2018 and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.  If the application is approved, the F or M nonimmigrant will resume lawful status. If the application is denied, the F or M nonimmigrant will resume the accrual of unlawful presence. Similarly, if the U.S. Department of State approves a J reinstatement application, the individual will not accrue unlawful presence from the time the J nonimmigrant fell out of status to the time the reinstatement application is approved.

There can be severe consequences for those who accrue unlawful presence, therefore foreign students, exchange visitors, and the institutions they attend should take all steps necessary to ensure compliance with all F, J and M program rules. Contact us today for more information.

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