USCIS Changes Unlawful Presence Policy for Students and Exchange Visitors

U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum on May 11, 2018 changing the way it calculates unlawful presence for students and exchange visitors in the U.S. in F, J, or M status, including F-2, J-2, or M-2 dependents.

Beginning on August 9, 2018, anyone in the U.S. as a foreign student, foreign vocational student, or foreign exchange visitor will immediately begin to accrue unlawful presence on the earliest of the following: the day after the individual ceases to pursue the course of study, the day after engaging in an unauthorized activity (such as unauthorized employment), the day after completing the course of study or program plus any authorized Optional Practical Training or grace period, or the day after the I-94 expires.

This is a marked departure from long standing policy of over 20 years in which foreign students and exchange visitors who let their status lapse did not begin accruing unlawful presence until USCIS formally found a status violation or until an immigration judge issued an exclusion, removal, or deportation order.

The change in policy has very serious immediate consequences as individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3 year or 10 year bars to admission, depending on how much unlawful presence is accrued.

Foreign nationals in F, J, or M status should verify any proposed changes to their employment, study, or program with their Designated School Official or Program Sponsor to ensure they are maintaining proper status.

The new policy will be subject to a 30 day public comment period that began Friday, May 11. To review and comment, please click here.

Finally, should you have questions on how this topic may affect you, your family, or friends, please contact the attorney assisting with your case or schedule a consultation here.