May 18, 2018
The USCIS issued another Policy Memorandum on May 10, 2018, that imposes significant restrictions to F and M students, as well as J exchange visitors, who violate their status. The new policy will impose additional hurdles for legalizing the immigration status for those who violate their F, M, or J nonimmigrant status.
The new policy changes the USCIS’ determination of when an individual who violates their F, M, or J status begins to accrue “unlawful presence” in the United States. When an individual begins to accrue “unlawful presence” is significant as it may subject an individual to inadmissibility from the US for 3 years, 10 years, or permanently.
Under the immigration laws, an individual who has been “unlawfully present” in the US for more than 180 days but less than 1 year triggers a 3-year bar of inadmissibility once they depart the US. An individual who has been “unlawfully present’ in the US for 1 year or more triggers a 10-year bar of inadmissibility once they depart the US. Moreover, when an individual has been “unlawfully present” in the US for a total combined period of more than 1 year, a permanent bar is triggered should they depart the US and then either attempt to enter or enters the US without inspection.
The current policy that is being changed affects individuals who are in the US as an F, M, or J nonimmigrant, as these individuals are generally given authorization to remain in the US for “Duration of Status” (“D/S”). Under the current policy, these individuals only begin to accrue “unlawful presence” on the day after USCIS formally finds them to have violated their status or the day after an immigration judge orders them deported, whichever is first. In many situations, neither of these actions ever occur and so many F, M, or J nonimmigrants who have violated their status would never accrue “unlawful presence.”
The new policy, which takes effect on August 9, 2018, completely changes this so that individuals who violate their F, M, or J status will begin to accrue “unlawful presence” on the earliest of the following:
The day after the F, M, or J nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in unauthorized activity;
The date after completing the course of study or program (including any authorized practical training plus authorized grace period);
The day after the Form I-94 expires, if the F, M, or J nonimmigrant was admitted for a date certain; or
The day after an immigration judge, or in certain cases, the Board of Immigration Appeals orders the alien excluded, deported, or removed (whether or not the decision is appealed).
For those F, M, or J nonimmigrants who have violated their status before August 9, 2018 but have not already began accruing “unlawful presence” under the current policy, they will begin accruing “unlawful presence” on August 9, 2018.
The new policy applies to both the principal F-1, M-1, or J-1 nonimmigrant, as well as their dependent, F-2, M-2, and J-2 dependents. When the principal nonimmigrant violates their status and begins to accrue “unlawful presence,” the derivate beneficiaries will also begin to accrue “unlawful presence” unless they have already began accruing it due to their own violation.
As indicated, the accrual of unlawful presence is problematic as it may accordingly subject an individual to a 3 year, 10 year, or permanent bar. It would effectively preclude the option of legalizing one’s status at a Consulate Office, which may otherwise be the only option for an individual who is unlawfully residing in the US. It is therefore extremely important that an F, M, or J nonimmigrant maintain status and not conduct any activity that may violate their status and potentially trigger the “unlawful presence” bar of inadmissibility.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter. Aquino & Loew also handles family law and criminal matters. Providing Personalized Service Nationwide & Abroad Since 1996.