USCIS released its updated policy memo effective August 9, 2018 affecting those in F, M, and J visa status. This updated policy memo changes how unlawful presence is determined/calculated for those in F, M, or J visa status, as previously, generally, those admitted for D/S would not begin to accumulate unlawful presence (despite being out of status) until the day after either a violation of the nonimmigrant visa status was found when adjudicating a request for another immigration benefit or an immigration judge ordered the foreign student/ exchange visitor be removed from the U.S. regardless of an appeal (whichever came first).
The new policy is the following:
For F, M, or J nonimmigrants who failed to maintain their status before August 9, 2018
These nonimmigrants will not begin to accrue unlawful presence until August 9, 2018 UNLESS they already began to accrue unlawful presence earlier when the earlier of:
(1) in the case that DHS made a formal finding when adjudicating another immigration benefit for the nonimmigrant that the nonimmigrant violated their nonimmigrant visa status, unlawful presence will begin to accumulate the day after the denial for the immigration benefit sought
(2) in the case that the nonimmigrant was admitted for a specific date (rather than for D/S), unlawful presence will begin to accumulate the day after the I-94 expired
(3) the day after an immigration judge ordered the nonimmigrant removed (regardless of an appeal)
For F, M, or J nonimmigrants who failed to maintain their status on or after August 9, 2018
Unlawful presence will begin to accumulate when the earlier of:
(1) the day after the course of study or authorized activity is no longer pursued (note: reinstatement may be possible if filed within 5 months of falling out of status see memo for details)
(2) the day after unauthorized activity occurs
(3) the day after the course of study or program or authorized training and any grace period ends
(4) the day after an immigration judge orders the nonimmigrant removed
HOWEVER pages 10-12 of the new policy memo highlights instances where, generally, unlawful presence would not be found for the specific nonimmigrant visa status (see here).
This policy memo supersedes all prior guidance on this matter.
It is important that F, J, and M nonimmigrants pay close attention to this new policy as violating it and becoming unlawfully present for a certain amount of time and then departing the U.S. could have major consequences as the three year bar (to entry into the U.S.) arises from more than 180 days to less than a year of unlawful presence and the ten year bar (to entry into the U.S.) arises from a year or more of unlawful presence.
If you are or plan to be in F, M, or J visa status make sure to consult closely with your school's/program's designated student officer/responsible officer to ensure that you are in compliance with your status/this memo. If you and/or your school's/program's officers have any doubts regarding your status, you may wish to consult with an immigration attorney or law firm that handles such matters to avoid any consequences associated with unlawful presence in the U.S.
***Please keep in mind that this blog posting is for educational purposes only (i.e., to give you general information and a general understanding of this immigration related matter); this blog posting does not provide specific legal advice and does not form an attorney-client relationship.***
The Law Offices of Rebecca Carcagno, PLLC
A U.S. Immigration Law Firm
3830 Packard St, Suite 240 Ann Arbor, Michigan 48108