On Friday, May 11, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum abruptly changing the long-standing policy on how and when USCIS will start calculating the accrual of unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, and their dependents, who fail to maintain status. The policy shift is linked to President Donald Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States. There is a 30-day public comment period that closes on June 11, 2018, with the new policy taking effect on August 9, 2018.

Unlike employment-based nonimmigrants (in H, L, O, TN, etc. status) and B1/B2 visitors who have the "Admit Until Date" on their Form I-94 admission record reflecting their status expiration date, foreign students and exchange visitors in F, M, and J status are admitted the U.S. for a Duration of Status (D/S) and are allowed to stay in the U.S. as long as they maintain their status (e.g., continue to go to school, not engage in unauthorized employment, etc.).

There has long been a clear distinction between a status violation and accrual of unlawful presence. Until now, a status violation in itself did not have a detrimental impact and could be cured by travel. Status violations often occur unintentionally by not maintaining a full course of study or engaging in an unauthorized activity. An opportunity to contest the status violation by the nonimmigrant was traditionally afforded when an application was submitted to USCIS. Under the new policy, there is a subjective determination of a status violation with little recourse if the unauthorized activity was triggered unknowingly.

Unlawful presence, on the other hand, comes with extremely harsh consequences – over 180 days of unlawful presence during a single stay triggers a three year readmission bar with the bar turning into a 10-year bar when accrued unlawful presence is over one year. Plus there is a permanent bar applicable to individuals with more than one year of unlawful presence who enter or attempt to reenter the U.S. without being admitted or paroled. Under the current policy in place since 1997, students and exchange visitors with D/S I-94s do not start accruing unlawful presence until USCIS formally finds a status violation while adjudicating a request for another immigration benefit or when an immigration judge orders the applicant excluded, deported or removed.

The new policy equates status violation with accrual of unlawful presence for students and exchange visitors, and will be applied as follows:

• F, J, or M nonimmigrants who fail to maintain their status before August 9, 2018, but haven’t otherwise already started accruing unlawful presence, will start accruing unlawful presence on August 9
• F, J, or M nonimmigrants who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in any unauthorized activity
  • The day after completing the course of study or program, including any authorized Optional Practical Training (OPT) plus any authorized grace period
  • The day after the Form I-94 expires
  • The day after an immigration judge (or in certain instances the Board of Immigration Appeals) ordered the foreign national excluded, deported, or removed (whether or not the decision is appealed)

This is a major policy shift that creates a dangerous environment in which F, J, or M nonimmigrants with status violations (including unintentional and even unknown violations) will potentially trigger a three- or 10- year bar to readmission. The policy for determining unlawful presence for aliens present in the U.S. who are not in F, J, or M nonimmigrant status remains unchanged, at least for now. The impact of this policy shift is not limited to foreign students and exchange visitors, but will also directly impact U.S. employers who wish to offer employment to this U.S. educated pool of candidates. U.S. employers may be impacted by this policy and will need to pay close attention to eligibility for change of status, visa, and adjustment of status applications.