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.