Unlawful Presence: New USCIS Guidance for Students and Exchange Visitors

Unlawful Presence: New USCIS Guidance for Students and Exchange Visitors

On August 9, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued finalized policy guidance on unlawful presence for students and exchange visitors, which revised previous guidance issued on May 10, 2018.

OIS has been closely monitoring this development.  Unfortunately, it is still unclear exactly how this guidance is being interpreted by USCIS, as well as other immigration agencies such as the Student and Exchange Visitor Program office (manages SEVIS), Immigration and Customs Enforcement (interior enforcement), and Customs and Border Protection (control of entry to U.S.).  The Department of State has issued some clarifying guidance for the purposes of visa adjudication.  In addition, a lawsuit was filed in October 2018 challenging the legality of this new interpretation.  While the lawsuit waits for its court date, the new policy remains in effect, and it is important to consider when advising students.

New Unlawful Presence Policy Guidance for F, M, and J students and scholars:

The new guidance makes significant changes to the way in which unlawful presence is calculated and accrued for F-1 students and J-1 exchange visitors. If you have engaged in unauthorized employment or otherwise violated your status, USCIS may decide that you began to accrue unlawful presence the day after that violation of status.  Depending on how much unlawful presence you accrue, you may be subject to a 3-year or 10-year bar on returning to the U.S. once you have departed. This also applies to your F-2 and J-2 dependents.

What is “unlawful presence” and why is it important?

Unlawful presence is defined as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled. Unlawful presence may have severe negative consequences for any future U.S. visa applications or attempts to adjust status to permanent residency, depending on how much unlawful presence was accrued before departing the United States.

Penalties for unlawful presence are determined by duration: unlawful presence of 180-364 days can result in a 3-year bar; 365+ days can result in a 10-year bar. Individuals who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible. Waivers are rare.

Key elements of the revised policy are:

Students and Exchange Visitors who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on August 9, 2018 based on that failure unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired (if not admitted for duration of status); or
  • The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

Students and Exchange Visitors who fail to maintain their status on or after August 9, 2018, begin accruing unlawful presence on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages 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 their I-94 expired (if not admitted for duration of status); or
  • The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

What if I’ve filed for reinstatement?

F nonimmigrants who timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending. (A “timely filing” is defined as when the student has not been out of status for more than five months at the time of filing.)

(Note that reinstatements for J-1 Exchange Visitors are handled by the U.S. Department of State, not USCIS.)  An F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status. However, if the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.

How this impacts NC State:

Previously, Students and Exchange visitors did not accrue unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation. That is no longer the case.  It is more important than ever that you be responsible about maintaining your lawful immigration status.

If you have questions about the memo’s effective date and applicability to your individual situation, contact an OIS advisor or an experienced immigration attorney.