U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum this week, changing the way unlawful presence will be calculated for students (F-1), exchange visitors (J-1), and vocational students (M-1), and their dependents, while in the United States. The new policy memorandum will take effect on August 9, 2018.

For most nonimmigrants in the United States, unlawful presence begins accruing when their Form I-94 expires.  Individuals in F, J, or M status, however, receive a Form I-94 with the notation “D/S” which stands for Duration of Status, meaning their period of authorized stay depends on however long it takes them to complete their studies or exchange program. For purposes of unlawful presence, because there usually is no expiry date on their Form I-94, it’s not always clear exactly when their status ends and when unlawful presence begins.

With technology advances and efficient database-sharing, the Immigration Service now can determine (pretty) accurately when students or exchange visitors have ceased to maintain their status and have started accruing unlawful presence.  This memo therefore expands the way the agency can calculate unlawful presence.

What does this mean for F, J, or M Nonimmigrants?

F, J, or M Nonimmigrants Who Fail to Maintain Nonimmigrant Status on or after August 9, 2018 will start accruing unlawful presence on the following:  

• The day after they stop pursuing the course of study or authorized activity, or the day after they engage in an unauthorized activity (such as working);

• The day after completing the course of study or program (including any authorized practical training and authorized grace period);

• The day after the individual’s Form I-94 Arrival/Departure Record expires; or

• The day after an immigration judge or the BIA orders the person removed (whether or not the decision is appealed).

F, J, or M Nonimmigrants Who Fail to Maintain Nonimmigrant Status before August 9, 2018 will start accruing unlawful presence on August 9, 2018 based on that failure, unless he or she already started accruing unlawful presence based on the following:

• The day after USCIS denied a request for an immigration benefit, if USCIS found that the individual had violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;

• The day after the individual's Form I-94 Arrival/Departure Record expired; or

• The day after an immigration judge or the Board of Immigration Appeals (BIA) ordered the person removed (whether or not the decision is appealed).

Unlawful presence in the United States can have serious consequences.  Individuals who have more than 180 days (but less than one year) of unlawful presence may be barred from returning to the United States for three years.  One year or more of unlawful presence results in a ten-year bar to returning. While there are waivers available, they are limited and difficult to obtain.

We highly recommend that students and exchange visitors maintain active lines of communication with their schools or program sponsors so there are no interruptions in the maintenance of their status.  

Should you wish to discuss this issue further, please contact us.