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  • Matthew Kolodziej

USCIS Memo Starts Unlawful Presence for Students and Exchange Visitors Immediately Upon Violation

Beginning August 9, 2018, a new policy changes how unlawful presence in the United States is calculated for certain students, exchange visitors, and trainees here on visa. Knowledge of the new policy, detailed in this post, is important to avoid a three or ten year ban from reentering the U.S.

On May 10th, 2018 U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum that changes how unlawful presence in the United States is calculated for certain foreign students and exchange visitors and trainees that overstay or otherwise violate their visa status. The new policy may make it more likely that these foreign nationals will be found to have accrued significant unlawful presence in the United States, resulting in a ban from reentering the country. The three- and ten-year bars ban a foreign national from reentering the U.S. for three years if the foreign national accrues 180 days of unlawful presence and for ten years if he or she accrues a year or more of unlawful presence.

Unlawful Presence Defined and Previous USCIS Policy

“Unlawful presence” is a specialized legal term of art that is not necessarily the same as being present without legal status. A foreign national may be present in the U.S. without legal status without being considered unlawfully present for the purposes of the three- and ten-year bars. For example, a foreign national who applies for permanent residence (a “green card”) may not have any formal legal status, such as F-1 or H-1B status, but is nevertheless considered lawfully present while the residency application is being processed. Other foreign nationals, such as minors, may actually be present in the U.S. illegally, but still do not accrue “unlawful presence”, for the purposes of the three- and ten-year bars, according to current USCIS policy.

Students (F-1 and M-1) are generally not given a fixed expiration date of their status in the U.S. Instead, they are admitted for “duration of status”, or “D/S”, which means they are considered in status as long as they comply with their student visa. Previous USCIS policy was that these foreign students who stayed after their course of study ended, or otherwise violated their status, for example by dropping out of school, generally did not accrue unlawful presence until USCIS formally determined that they were out-of-status, such as by denying an extension of stay, or until an immigration judge ordered them deported or removed. J-1 exchange visitors and trainees admitted for duration of status who subsequently overstayed their programs or otherwise violated their status also did not accrue unlawful presence until there was a formal decision by USCIS or an immigration judge. Students and exchange visitors who are admitted with an expiration date start accruing unlawful presence after that date.

New Policy Starts Unlawful Presence Immediately After Status Violation

The new USCIS policy states that starting August 9, 2018 unlawful presence starts accruing immediately when the student or exchange visitor overstays their program or otherwise violates their status. Note the foreign national may still accrue unlawful presence even he or she is unaware of the violation. The Department of Homeland Security or USCIS can determine that the foreign national violated their status by no longer pursuing the course of study or other authorized activity before completing his or her course of study or program, by engaging in another unauthorized activity, or by remaining in the U.S. after having completed their studies or program (after any authorized practical training plus any authorized grace period). F, J, or M nonimmigrants who were admitted for duration of status and have failed to maintain their nonimmigrant status, and have not started accruing unlawful presence under previous USCIS policy, will start accruing unlawful presence based on that failure on August 9, 2018.

This change in policy is futher evidence that the current administration is making it increasingly complicated for visa holders to maintain lawful status, avoid accruing unlawful presence, and avoid becoming inadmissible. All visa holders, and foreign students and exchange visitors in particular, are urged to check their I-94 cards upon each entry into the United States and to ensure that they do not overstay their I-94 expiration date, if any, and if admitted for duration of status (D/S), to abide by all visa requirements at all times. If questions arise consult with your designated school official in charge of foreign student programs, your J-1 exchange program administrator, or immigration attorney to ensure visa compliance.


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