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Major Change in USCIS Policy on Accrued Unlawful Presence Likely to Impact F, M and J Status Holders

USCIS has posted a policy memorandum that will radically change current policy for students and exchange visitors.  The policy makes it much more likely that those in F, M or J status will find themselves accruing unlawful presence and becoming subject to three and ten-year bars to admission.

Under current policy there is a distinction between violating visa status and unlawful presence. Status violations include, among other things, unauthorized employment or participating in activities not authorized by the individual’s visa status.  Unlawful presence accrues when an individual stays in the United States beyond the date granted upon entry.  Unlike those in other nonimmigrant visa statuses, students and exchange visitors generally are not given a specific “end date” when they enter the U.S.  Instead, they are generally admitted for the Duration of Status (D/S), i.e., the length of their programs.  Under current policy, because they are issued no specific end date to their statuses, they cannot start accruing unlawful presence unless USCIS actually makes a formal finding of a violation of status or they are ordered removed, deported or excluded.

Now a simple violation of status (knowing or unknowing) without any formal finding can start the clock for unlawful presence.

According to the memo:

  • As of August 9, 2018, individuals in F,M or J status who have not been maintaining status will start accruing unlawful presence;
  • Individuals who fail to maintain status on or after August 9, 2018 will start accruing unlawful presence on the earliest of:
    • The day after they are no longer pursuing the authorized activity;
    • The day after they engage in unauthorized activity;
    • The day after completing the course of study or program including authorized practical training plus any authorized grace period;
    • The day after their I-94 expires (if one was issued with a date certain); or
    • The day after they are ordered excluded, deported or removed.

USCIS has stated that this new policy aligns with President Trump’s Enhancing Public Safety in the Interior of the United States Executive Order which directs strict enforcement of all immigration laws.  It is also in accord with the Buy American, Hire American Executive Order which restricts immigration in an effort to protect the U.S. workforce.   The Trump Administration has made it clear that it has concerns about students who work in the United States post-graduation on the basis of Optional, STEM or Curricular Practical Training.  For example, in the DHS Spring 2018 Regulatory Agenda, one of the items listed is Practical Training Reform to protect “U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas” and “to reduce fraud and abuse.”

The three- and ten-years bars to re-admission set out in Section 212(a)(9)(B) of the Immigration and Nationality Act (INA) are quite draconian.  Individuals who accrue 180 days, but less than one year of unlawful presence can be barred from returning to the United States for three years.  Those with more than one year of unlawful presence may be barred for ten years.  Waiver of the bars may be possible only in certain circumstances of extreme hardship to a spouse or parent who is a U.S. citizen or lawful permanent resident.

USCIS is accepting comments on the new policy memorandum until June 11, 2018. 

Jackson Lewis P.C. © 2023National Law Review, Volume VIII, Number 134

About this Author

Forrest G. Read IV, Immigration, Employment, Attorney, Jackson Lewis, Law Firm

Forrest Read is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has special expertise in legal issues in graduate medical education (GME).

Mr. Read's immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and...