Crucial Changes to Unlawful Presence Regulations
The Foreign Affairs Manual (FAM) and the Foreign Affairs Handbooks (FAHs) are the comprehensive and authoritative sources for the U.S. Department of State’s (DOS) organization structures, policies and procedures. These resources convey codified information to DOS staff and contractors, so they can carry out their duties in accordance with statutory, executive and Department mandates. Recently the section of FAM discussing unlawful presence was revised. These revisions highlight the recent changes to F, J and M nonimmigrant visas and unlawful presence.
According to these updates, a foreign national would generally begin to accrue unlawful presence upon the first occurrence of any of the events described: when the foreign national entered the United States without inspection; the day after the expiration date marked on Form I-94 plus any extension or period of re-parole for aliens admitted until a specified date; the day after a foreign national’s period of authorized stay expires for an alien admitted in J, F or M status; the day after DHS denied a request for an immigration benefit for the applicant, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit; or the day after an immigration judge ordered the foreign national excluded, deported, or removed, regardless of whether the decision is appealed. Aliens will not accrue unlawful presence if they are authorized to be in the U.S. under the requisite visa or work authorization.
This update mainly offers specific and detailed guidance for F, J and M nonimmigrant visa holders. This update is consistent with the August 9th USCIS memorandum on the same topic. For these foreign nationals who were out of status and timely filed a reinstatement application, the time period that the alien was out of status and the time period that their reinstatement application is pending does not accrue unlawful presence, as long as the reinstatement application is ultimately approved. It is also essential that these visa holders comply with other requirements including: being lawfully admitted or paroled into the U.S.; not working unlawfully prior or subsequent to applying; and not otherwise failing to maintain status.
However, according to the FAM, applicants who previously had F, J or M status will begin to accrue unlawful presence in several situations: the day after the date specified on Form I-94 plus any extension of stay, if the F, J, or M nonimmigrant was admitted for a specified date; the day after the applicant ceased engaging in the activities for which he or she was in the United States in F, J, or M status, such as the day after the applicant stopped attending school (it is important to note this only applies for actions on or after August 9, 2018; an applicant who failed to maintain nonimmigrant F, J, or M status before August 9, 2018, and remained in the United States after that date began accruing unlawful presence on August 9, 2018); the day after DHS denied a request for an immigration benefit regardless of whether the applicant continued attending school or participating in the exchange program, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating the request for an immigration benefit before August 9, 2018; or the day after an immigration judge ordered the foreign national excluded, deported, or removed, regardless of whether the decision is appealed.
The changes made regarding unlawful presence generally focus on F, J or M visa holders and can be complicated. If you have questions about unlawful presence, please contact us today to speak with one of our attorneys!