The May 11, 2018 policy memorandum issued by the U.S. Citizenship and Immigration Services, with the underlying new rules scheduled to go into effect on August 9, 2018, will drastically change the long-standing rules regarding unlawful presence (ULP) as they apply to F, J, and M nonimmigrants, and their dependents.
Under the new policy, F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence as follows:
F, J, M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018
F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of the following:
a. The day after Department of Homeland Security (DHS) denied the request for an immigrant benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigrant benefit;
b. The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
c. The day after an immigration judge or, in certain cases, the Board of Immigration Appeals, (BIA), ordered the alien excluded, deported, or removed (whether or not the decision is appealed).
F, J, M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018
An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:
a. The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
b. The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
c. The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
d. The day after an immigration judge or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).
Many of these visa holders may not even realize they commit any status violation until after the fact. It is unclear whether the new rules excuse unintentional overlooks or mistakes. Status violations under the new rules will likely lead to draconian consequences. Specifically, accrual of ULP can result in a three-year or ten-year inadmissibility bar upon a departure by the visa holders. This can potentially affect foreigners who may be eligible for adjustment of status through their relatives who are U.S. citizens or permanent residents.
If you are a F, J, or M visa holder, you should definitely pay close attention to how this new policy may apply to your situation before planning your next visit to your home country or vacation to Mexico, Canada, or any other foreign country.
This new policy, described as “an abrupt, radical departure from more than 20 years of policy guidance,” will take effect on August 9, 2018. The policy for determining unlawful presence for aliens present in the United States who are not in F, J, or M nonimmigrant status remains the same.
The underlying policy memorandum can be found at https://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO_v2.pdf.
