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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: 

  1. The day after USCIS formally finds a nonimmigrant status violation; or 
  2. 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:

  1. The day after their Form I-94 expires;
  2. The day after USCIS formally finds a nonimmigrant status violation; or
  3. 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 of all nonimmigrants. The policy is outdated and the government has come to that realization. As a result, changes are in store. 
USCIS Plans to Change Their Policy 
U.S. Citizenship and Immigration Services just released a policy memorandum outlining planned changes to how the agency calculates unlawful presence for F-1, J-1 and M-1 nonimmigrants and their dependents (F-2, J-2 and M-2). The changes are designed to implement new technologies and reduce the number of nonimmigrants who overstay their period of admission. The memorandum has been posted for public comment and the new policy is scheduled to take effect on August 9, 2018.
New Policy (Effective August 9, 2018)
The new standard varies based on the date the F, J or M nonimmigrant initially fails to maintain their status. If you fail to maintain your status before August 9, 2018, unlawful presence will begin to accrue on August 9, 2018, unless it had already started accruing on the earliest of any of the following:

  1. The day after DHS denies a request for an immigration benefit, if DHS made a formal finding that you violated your nonimmigrant status while adjudicating a request for another immigration benefit;
  2. The day after your I-94 expires; or
  3. The day after an immigration judge or the Board of Immigration Appeals (BIA) orders you excluded, deported or removed.

Individuals in F, J or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  1. The day after you no longer pursue your course of study or authorized activity;
  2. The day after you engage in an unauthorized activity;
  3. The day after completing your course of study or program, including any authorized practical training plus any authorized grace period;
  4. The day after your I-94 expires; or
  5. The day after an immigration judge or the BIA orders you excluded, deported or removed.

If you are interested in applying for F or J status, be sure to contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!