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USCIS Updates Policy on Unlawful Presence for F, M, and J Nonimmigrants

On May 10, 2018, USCIS issued a policy memorandum that updates the current policy on the calculation of unlawful presence for certain nonimmigrants. “Unlawful presence” can occur when an individual is physically in the United States without proper authorization. Unlawful presence for 181 to 364 days or for one year or more, followed by a departure from the U.S., may subject the individual respectively to a three- or ten-year bar to reentry. The updated policy applies to students (F status), exchange visitors(J status), and vocational students (M status). Once it goes into effect, the memorandum will supersede the prior policy. The memorandum is open for public comment until June 11, 2018 and is scheduled to go into effect on August 9, 2018.

Since the implementation of the prior policy in 1997, the Department of Homeland Security (DHS) has made significant progress in its ability to identify and monitor individuals in these statuses, including the introduction of SEVIS (the Student and Exchange Visitor System), which DHS uses to monitor F, J, and M nonimmigrants. The updated policy reflects DHS’s enhanced ability to provide updated information to USCIS. DHS intends to use the policy to reduce the number of overstays and is in line with President Trump’s agenda to strictly enforce the country’s U.S. immigration laws. According to DHS, in 2016, 1,457,556 individuals were admitted in F, J, and M status and were expected to either change status or depart the U.S. They estimated that 6.19% of F nonimmigrants, 3.8% of J nonimmigrants, and 11.6% of M nonimmigrants overstayed their status. 

Unlawful presence for these nonimmigrants will now be accrued using the below methodology:

F, J, or M Nonimmigrants who failed to maintain nonimmigrant status prior to August 9, 2018 

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status prior to August 9, 2018 will start accruing unlawful presence based on that failure on August 9, 2018, unless the individual had already started accruing unlawful presence on the earliest of the following – the day after DHS denied a request for an immigration benefit if DHS made a formal finding that the individual violated his or her nonimmigrant status; the day after the Form I-94 expired; or the day after an immigration judge ordered the individual excluded, deported, or removed.

F, J, or M Nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 

F, J, of M nonimmigrants begin accruing unlawful presence, due to a failure to maintain status on or after August 9, 2018, on the earliest of any of the following – the day after the individual no longer pursues the course of study or authorized activity, or engages in unauthorized activity; the day after completing the course of study or program (including any authorized practical training plus grace period); the day after Form I-94 expires; or the day after an immigration judge orders the individual excluded, deported, or removed.

The period of authorized stay for dependents ends when the principal nonimmigrant’s stay ends.  A dependent’s authorized stay may also end due to the dependent’s own conduct or circumstances. An individual under the age of 18 does not accrue unlawful presence. 

Each status (F, J, and M) has some specific exceptions to accruing unlawful presence.  Individuals with specific questions are encouraged to consult with their Mintz Levin immigration attorneys to fully assess how their immigration situations may be affected by this proposed policy change.

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