USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors

by Joseph McKeown

US Citizenship and Immigration Services (USCIS) has posted a policy memorandum for public comment that changes how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the US. This updated policy, which will be effective August 9, 2018, aligns with President Trump’s “Executive Order: Enhancing Public Safety in the Interior of the United States,” USCIS says. L. Francis Cissna, director of USCIS, says the policy sends a message that nonimmigrants in these statuses cannot overstay their periods of admission or violate the terms of admission. “USCIS is dedicated to our mission of ensuring the integrity of the immigration system,” he says. “F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status.”

Individuals holding F, J, and M status who have 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 times:

  • The day after DHS denied the 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;
  • 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).

Additionally, individuals holding F, J, or M status who have failed to maintain their status on or after August 9, 2018, will begin accruing unlawful presence on the earliest of any of the following times:     

  • 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).

The consequences for accruing unlawful presence can be severe. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or ten-year bars to admission, depending on the total amount of unlawful presence accrued before departure. Individuals with more than one year in total of unlawful presence, including in single or multiple stays, who reenter or attempt to reenter the US without being admitted or paroled are permanently inadmissible. Individuals subject to the three-year, ten-year, or permanent unlawful presence bars to admission are generally not able to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief. The thirty-day public comment period closes June 11, 2018.

UPDATE AUGUST 15, 2018: After receiving feedback during the thirty-day public comment period ending June 11, 2018, USCIS has issued revised final guidance related to unlawful presence for F and M students and exchange visitors. The revised final policy memorandum, effective August 9, 2018, states that F and M nonimmigrants who “fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.”

USCIS explains: 

For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.
If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act. Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

USCIS says that the Department of State, which administers the J-1 exchange visitor program, will also process reinstatement requests, and if they approve the J-1 reinstatement application, the foreign national “will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.”

USCIS Director L. Francis Cissna says:  “As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories.” He adds: “Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”