Unlawful Presence for Students – USCIS Tightens the Rules

On May 10, the USCIS issued a policy memorandum which tightens the rules which define unlawful presence for students. The new rule took effect on August 9, 2018.

In order to explain what the rule means, it is best to start by explaining the unlawful presence bars which originated in the 1996 immigration law.

The law provides that a person who accumulates more than 180 days of unlawful presence in the US, and then leaves the country, is barred from returning to the US for a period of 3 years.

It also provides that anyone who accumulated more than one year of unlawful presence in the US and then leaves the country, is barred from returning to the US for a period of 10 years.

Persons who able to show that certain qualifying relatives would suffer “extreme hardship” if they were barred from returned to the US for 3 or 10 years obtain “waivers” of these bars.

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How Does a Person Accrue Unlawful Presence in the US?

1. Entry Without Inspection– If a person enters the US without being inspected by an immigration officer, every day that he/she is present in the US is considered unlawful presence.
2. Overstay– If a person enters the US lawfully with a temporary immigration status, they are given a date on which they must either leave the country or apply for an extension or change of status. If they remain unlawfully in the US after their temporary status expires, each day that they overstay is considered unlawful presence.
3. Status Violator– If a person is in lawful nonimmigrant status, but they violate their status, the situation becomes a bit more complex. For example, what happens if a person on a B-2 tourist visa works without authorization or an F-1 student stops going to school? When do they start accruing unlawful presence?

It has also been USCIS’s position for the past 20+ years that a status violator starts accruing unlawful presence only when either (1) on the date that the DHS finds that the person has violated his immigration status or (2) when an Immigration Judge orders the person excluded, deported or removed from the US, whichever comes first.

The New USCIS Memo – Unlawful Presence for Students (5-10-18)

The new USCIS memo will, as of August 9, 2018, crack down on students in F, J or M status who violate their status. Unlawful presence for students will begin to accrue even without a DHS finding or a Judge’s order.

F, J, or 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 person had already started accruing unlawful presence on the earliest of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• 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
• 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, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018

The memo provides that on August 9, student status violators will begin to accrue unlawful presence starting whenever any of the following events occurs:

• The day after the person in F, J or M status no longer pursues the course of study or the authorized activity, or the day after he/she engages in an unauthorized activity;
• The day after completing the course of study or program plus any authorized grace period;
• The day after form I-94 expires, if the person was admitted until a specific date; or
• The day after an Immigration Judge or, in certain cases, the Board of Immigration Appeals orders the person excluded, deported, or removed whether or not the decision is appealed.

What You Should Do ASAP

If you have accrued unlawful presence prior to August 9, 2018, you should see an experienced immigration attorney right away to see what your options are.

Over the last 20+ years, we have had considerable success in helping our clients avoid the unlawful presence bars and obtaining waivers of these bars.

If the new rules would negatively impact you, don’t wait to discuss this with an immigration attorney.

Do so now!