U.S. Citizenship and Immigration Services (USCIS) has posted a policy memorandum for public comment, changing how the agency calculates unlawful presence for F-1, J-1, and M-1 nonimmigrant students and exchange visitors and their dependents (F-2, J-2, and M-2 nonimmigrants). These changes are designed to reduce the number of nonimmigrants who overstay their periods of admission and clarify how USCIS implements the unlawful presence grounds of inadmissibility.
Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:
The day after DHS denied the request for the 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;
The day after their I-94 expired; or
The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).
Individuals in F, J, or M status who fail 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 they no longer pursue the course of study or the authorized activity, or the day after they engage 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 I-94 expires; or
The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).
This memo replaces previous USCIS guidance indicating that students and exchange visitors who are admitted for, or present in the United States in duration of status (D/S) only accrue unlawful presence after USCIS formally finds a nonimmigrant status violation or an immigration judge orders the applicant excluded, deported or removed, whichever came first.
What does this mean?
Because the accrual of unlawful presence is what leads to the three and ten year bars to admission, the new policy can create barriers for students and exchange visitors who fall out of status and want to apply for a visa or admission, or to adjust status to U.S. permanent resident (apply for a green card).
Individuals who have accrued more than 180 days of unlawful presence and then depart the U.S. are subject to a three-year bar to admission, while those who have accrued more than 365 days of unlawful presence and then depart are subject to a ten-year bar to admission. Such individuals are generally not eligible 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.
USCIS encourages F, M and J nonimmigrants to visit the Study in the States website, which has government resources that explain the rules and regulations governing the international student process in the United States.