By Attorneys Brittany M. Milliasseau & Nancy E. Miller
U.S. Citizenship and Immigration Services (USCIS) recently issued a policy memorandum changing how the agency will calculate unlawful presence for foreign students and exchange visitors. “Unlawful presence” is a legal term of art which describes time spent in the U.S. after a noncitizen’s period of authorized stay expires or any presence in the U.S. without being admitted or paroled.
Aimed at reducing the number of overstays in the U.S., this new policy will directly impact noncitizens in academic (F-1), vocational (M-1), and exchange visitor (J-1) status, as well as their dependent spouses and children. Under this new policy which will be effective August 9, 2018, unlawful presence will be calculated in a way that will essentially result in these noncitizens accruing unlawful presence at an earlier point in time.
The accrual of unlawful presence may severely impact one’s immigration status in the U.S. In short, noncitizens who accrue more than 180 days of unlawful presence and who subsequently depart the U.S. are subject to a three-year bar from reentry. Similarly, individuals who accrue one year or more of unlawful presence are subject to a ten-year bar should they depart the U.S. Further, those who accrue more than one year of unlawful presence, whether in a single stay or in the aggregate, and who then reenter or attempt to reenter the U.S. without being admitted or paroled are permanently inadmissible. These bars may prevent a noncitizen from reentering the U.S. as either a temporary nonimmigrant or as an immigrant. As such, even if a noncitizen becomes eligible for a green card and departs the U.S. for consular processing of an immigrant visa, he or she may be barred from reentry due to unlawful presence.
Under current policy, F, J, and M nonimmigrants are typically authorized to remain in the U.S. for “duration of status” rather than to a certain date like other nonimmigrant categories. Their authorized period of stay ends when they fail to maintain their status or engage in activity that is inconsistent with their current status. Currently, individuals in F, J, and M status do not automatically begin accruing unlawful presence after a status violation or failure to maintain status, but rather only after the occurrence of a certain event, including a formal finding by USCIS that a nonimmigrant status violation occurred or after an immigration judge orders the noncitizen removed from the U.S.
Under the new policy, individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on August 9, 2018 unless they had already started accruing unlawful presence on the earliest of any of the following dates: 1) the day after the Department of Homeland Security (DHS) denied a 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, 2) the day after I-94 expiration, or 3) the day after an immigration judge ordered the noncitizen excluded, deported, or removed from the U.S. Further, F, J, or M nonimmigrants who fail to maintain status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following: 1) the day after he or she no longer pursues the course of study or the authorized activity, or engages in unauthorized activity, 2) the day after completing the course of study or program, including any authorized practical training plus any authorized grace period, 3) the day after the I-94 expires, or 4) the day after an immigration judge orders him or her excluded, deported, or removed from the U.S.
Not only does this policy change impact F-1, J-1, and M-1 nonimmigrants, but it also impacts their nonimmigrant dependent spouses or children who are admitted contingent on the principal remaining in a period of authorized stay. In essence, an individual in dependent status may begin accruing unlawful presence merely due to their family member’s status violation. It should be noted that children under 18 years old do not accrue unlawful presence.
If you are currently in or considering F, J, or M status, it is important to speak with a knowledgeable immigration attorney to see how this upcoming policy change may impact you. In addition, if you have ever failed to maintain your F, J, or M status, or have engaged in any activity that is inconsistent with your status (e.g. worked without authorization), you should consult an experienced immigration attorney regarding how that will impact your ability to legally reside in the United States.
