Last week, USCIS issued a new policy memorandum that significantly modifies a long-standing government interpretation of what constitutes unlawful presence for students and exchange visitors. Unlawful presence is an important concept for individuals who stay past their authorized periods of stay because accrual of six months or more may trigger mandatory bars to admission. These bars are colloquially known as the three (when six months or more, but less than one year, of unlawful presence has been accumulated) and ten-year (when one year or more of unlawful presence has accrued) bars. The bars are triggered upon departure of the individual from the United States and essentially ban the applicant from re-entry for three or ten years, absent a waiver.
Up until now, F-1 students and other similarly situated visa holders admitted as “D/S” have been treated somewhat differently than individuals admitted until a specific date. Generally speaking, unlawful presence will not begin to accrue for students until 1) DHS has made a formal finding that the individual violated his/her non-immigrant status; or 2) an Immigration Judge has made such a finding. In contrast, individuals with specific dates on their I-94s (such as people who enter on B-2 visitor visas) begin to accrue unlawful presence the very day after that date. This distinction can become critical if the student has violated his/her status, ie., by working without authorization, but not necessarily overstayed his/her period of studies. Under the current policy, the student would not begin accumulating unlawful presence unless and until USCIS or an Immigration Judge has made a formal finding.
But now, pursuant to this May policy memo, DHS will consider the accrual of unlawful presence for F, J, or M students to begin on the earliest of any of the following:
· 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).
These new changes affect individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018. As mentioned earlier, the calculation of unlawful presence is critically important because accrual of too much time followed by a departure may trigger a bar to admission, whether in connection with a visa, admission, or adjustment of status.
For more information on the unlawful presence bar, the permanent bar, and unlawful presence bar waivers, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.