In a Policy Memorandum issued on May 10, 2018 (USCIS Policy Memorandum), the U.S. Citizenship and Immigration Service (“USCIS”) proposed a substantial change in the manner in which it will calculate periods of unlawful presence for foreign students and scholars in F, J, and M nonimmigrant visa status. As a result, foreign students and scholars need to be more careful than ever to comply with all rules and regulations governing the maintenance of their status in the U.S. to avoid the accrual of unlawful presence. Even a slight misstep or administrative mistake may have disastrous consequences, including lengthy or even permanent bars on the ability to enter the U.S. in the future.
The Consequences of Accruing Unlawful Presence
As explained in the Policy Memorandum, foreign persons who accrue certain periods of unlawful presence in the U.S., and then depart the U.S., are inadmissible to the U.S. as follows:
Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.
Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.
In light of these substantial consequences, it is critical to avoid the accrual of unlawful presence.
Prior Policy on Accrual of Unlawful Presence
Since 1997, the governing USCIS policy had been that a foreign student admitted to the U.S. in F (foreign student) or J (exchange visitor) status for duration of status (“D/S”) did not accrue unlawful presence until (1) the day after the USCIS formally found a violation of non-immigrant status while adjudicating a request for another immigration benefit or (2) the day after an immigration judge ordered the applicant excluded, deported, or removed from the U.S., whichever came first. In addition, F, J and M (foreign vocational students) who were admitted to the U.S. until a date certain (instead of D/S) did not accrue unlawful presence until the date after their period of authorized stay (as reflected on Form I-94) expired or either of the two foregoing conditions occurred. In simpler terms, under the prior rule, F, J, or M students and scholars who overstayed or violated their status did not accrue unlawful presence immediately, but instead only after the expiration of their period of authorized stay (as reflected on Form I-94) or after they were formally determined by the USCIS or an immigration judge to have violated their status.
New Policy on Accrual of Unlawful Presence
The May 10 Policy Memorandum, which is scheduled to take effect on August 9, 2018, changes prior USCIS policy quite dramatically, with potentially devastating effects. In addition to the situations in which unlawful presence has historically accrued, now, F, J, and M students and scholars will start accruing unlawful presence on the day after they “fail to maintain their nonimmigrant status” by “no longer pursu[ing] the course of study or the authorized activity” or “engag[ing] in an unauthorized activity.” In addition, unlawful presence will start to accrue on the day after the F, J, or M student or scholar “completes the course of study or program (including any authorized practical training plus any authorized grace period…).” Dependents of F, J, and M students and scholars will also accrue unlawful presence when the primary visa holder fails to maintain his/her status.
Basically, this new policy means that a foreign national in F, J, or M nonimmigrant visa status will accrue unlawful presence starting immediately if he/she drops out of school, fails to maintain a full-time course load, works without authorization, or remains in the U.S. beyond his/her authorized period of stay. Significantly, F, J, and M students and scholars who have already violated their status will begin to accrue unlawful presence on the effective date of the new policy (August 9, 2018).
The USCIS is accepting comments on the new Policy Memorandum through June 11, 2018 and may make changes based on the comments received. However, assuming that this Policy Memorandum goes into effect as expected, then foreign students and scholars (who are often busy, young adults and sometimes do not pay attention to complex legal requirements as they should) need to be very careful to avoid a violation of status that results in the accrual of unlawful presence. Failure to pay attention to maintaining status could unknowingly result in the inability to return to the U.S. in the future.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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