On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum (PM-602-1060) that overturned prior guidance on the interpretation of “unlawful presence” for non immigrant students, exchange visitors, and vocational students. USCIS aims at reducing “the number of overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility”. Once the visa-holder will start accruing “unlawful presence” in the United States , she will – over a period of time – become subject to a three-year or ten-year bar to reentering the United States.
The policy memorandum guides USCIS officers and assists them in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States.
This policy memorandum takes effect on August 9, 2018. Therefore, F, J or M nonimmigrants who failed to maintain nonimmigrant status:
– before August 9, 2018, will start accruing unlawful presence following a formal finding of a status violation by the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR) for F, J, and M nonimmigrants;
– on or after August 9, 2018, in addition the above, visa holders will start accruing unlawful presence on the earliest of any of the following:
- Failure to continue pursuing the course of study or authorized activity which was the basis for their F, J, or M nonimmigrant status;
- Engagement in an unauthorized activity not permitted under their status (such as unauthorized employment); and
- Completion of the course of study or authorized activity which was the basis for their F, J, or M nonimmigrant status.
In these case, unlawful presence begins accruing the day following the completion or the desertion of the course of study or authorized activity, or following any authorized grace period that is provided by law or regulation (whichever is later).
Nonimmigrants students, exchange visitors, and vocational students should be careful not to violate their status, as they could inadvertently trigger unlawful presence and jeopardize future status in the United States.
Authority
- INA 212(a)(9)(B)
- INA 212(a)(9)(C)
USCIS policy memorandum (PM-602-1060) is available at https://www.uscis.gov… Open PDF
For more information on how unlawful presence will affect you, contact Craig Dobson
Originally published on CGCFirm on June 2018