USCIS Alters Policy on When Unlawful Presence Begins for Certain Nonimmigrants

USCIS Alters Policy on When Unlawful Presence Begins for Certain Nonimmigrants

On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) announced a policy change regarding when nonimmigrant exchange visitors and students will start to accrue unlawful presence.

As background, a nonimmigrant who remains in the United States longer than the stated date on their Form I-94 by more than 180 days is barred from obtaining another U.S. visa or from being admitted to the United States for a three year period, and a nonimmigrant who remains in the United States longer than the stated date on their Form I-94 by more than 1 year is similarly barred from the United States for 10 years. Previously, certain nonimmigrants in F, J and M status were treated differently in that their admission was not until a date certain but for the duration of their status of D/S. Until recently, that group of nonimmigrant began to collect or accrue unlawful presence when USCIS or an Immigration Judge ruled on an application and made an affirmative finding regarding unlawful presence.

According to the USCIS Memorandum, starting on August 9, 2018, F, J and M nonimmigrant visa holders in the United States, as well as F-2, J-2 and M-2 dependents, will be subjected to stricter unlawful presence rules. After that date, F, J and M nonimmigrants who do not maintain their status will have unlawful presence begin after one of the situations below, whichever is earliest:

(1) The day after the student or exchange visitor stops pursuing a course of study or authorized activity, or the day after such person participates in an unauthorized activity;

(2) the day after the student or exchange visitor finishes a course of study, including all authorized practical training programs, as well as any approved grace period;

(3) the day after Form I-94 expires if the student or exchange visitor was admitted until a date certain; or

(4) the day after an immigration judge or the Board of Immigration Appeals issues a removal order.

Because inadvertent violations start the unlawful presence clock and can have significant impacts on F, J and M nonimmigrants, such students and exchange visitors must be especially careful about maintaining their status.