Court Enjoins USCIS from Enforcement of Unlawful Presence Memo Impacting Students and Exchange Visitors

A Federal Judge has enjoined USCIS from enforcing a policy memorandum issued in August 2018 relative to the accrual of unlawful presence for nonimmigrant student or exchange visitors. The ruling found that the policy memorandum amounts to a “legislative rule” in violation of the Administrative Procedures Act because the government did not publish in the Federal Register or allow for a period of public comment on the rule.  A person can accumulate unlawful presence by (1) entering the U.S. without inspection; (2) overstaying their period of lawful status in the U.S.; or (3) violating their immigration status. Previously, for students and exchange visitors, accrual of unlawful presence began only when DHS or an immigration judge made an out-of-status determination and notified the individual of the same. Pursuant to the USCIS policy update, a determination of retroactive violation is made and can result in the denial of a green card application and bar the individual from entry for a period of three years (if the violation occurred before August 9, 2019) or 10 years (if after August 9, 2019). The Court’s decision in Guilford College v. USCIS prohibits the USCIS from enforcing the policy outlined in its August 2018 memorandum.  If […]
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Lawful Status, Authorized Stay and Unlawful Presence: Related, But Unique Concepts You Need to Know

Lawful status, period of authorized stay, and unlawful presence are all terms that in the immigration context, refer to related, yet unique concepts. It is crucial to understand these concepts as they can have a major impact on the success of one’s immigration case or petition.  Lawful Status All U.S. citizens and U.S. nationals have lawful status in the United States. Lawful status is not restricted only to citizens and nationals. Foreign nationals who have been allowed to enter the U.S. on a temporary or permanent basis also enjoy lawful status within the U.S. For example, a legal permanent resident or a foreign national holding an H-1B visa will also have lawful status. For foreign nationals, lawful status is generally demonstrated by two prongs: a valid I-94 and acting within the confines of their issued visa. An unexpired I-94 shows that a foreign national has entered the U.S. legally through inspections. Additionally, a foreign national must adhere to the parameters of their visa. For example, with a few exceptions, a student in the U.S. on a F visa must not work to remain in lawful status.  Authorized Period of Stay While the term sounds interchangeable with lawful status, a period […]
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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 […]
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Could You be Unlawfully Present in the US? USCIS to Issue New Unlawful Presence Policy for F, J and M Nonimmigrants

If you’re currently in the U.S. as an F (student), J (exchange visitor) or M (vocational student) nonimmigrant, it is important to understand how USCIS determines and tracks the accrual of unlawful presence, because current methods are about to change.  Current Policy According to the current USCIS policy, foreign students and exchange visitors (F and J nonimmigrants) who were admitted to the U.S. for the duration of their course of study, also known as duration of status, start to accrue unlawful presence on:  The day after USCIS formally finds a nonimmigrant status violation; or  The day after an immigration judge orders the nonimmigrant excluded, deported or removed. Alternatively, foreign students, exchange visitors and foreign vocational students (F, J and M nonimmigrants), who were admitted until a specific date, start to accrue unlawful presence on: The day after their Form I-94 expires; The day after USCIS formally finds a nonimmigrant status violation; or The day after an immigration judge orders the nonimmigrant excluded, removed or deported. It is important to note that the current policy went into effect in 1997. It was drafted years before the creation of modern technology that is now being used by DHS to monitor the status […]
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