On May 11, 2018, United States Citizenship and Immigration Service (USCIS) posted a draft policy memorandum announcing a change in policy regarding the accrual of Unlawful Presence by Nonimmigrant Students and Exchange Visitors.
The policy seeks to change how USCIS will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the United States.
Previously, because students and exchange visitors in F, J, and M nonimmigrant status were admitted “duration of status” or “D/S”, rather than through a fixed date, they generally did not start accruing unlawful presence until there was a formal finding that they violated their status, which normally arose in the context of adjudicating a request for a new immigration benefit such as a change of status request or in the context of removal proceedings. Under the new policy, individuals in F, J, and M status who fail to maintain their status can be found to have violated their status retroactively and will generally begin to accrue unlawful presence from the date of the status violation, even absent a formal finding of a status violation.
More specifically, under the new rule, individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date. Note that such individuals can begin to accrue unlawful presence earlier than August 9, 2018, if they had already started accruing unlawful presence based on any of the following:
The day after a request for an immigration benefit is denied where a formal finding that the individual violated his or her nonimmigrant status has been made;
The day after their I-94, Arrival and Departure Record, expired; or
The day after an immigration judge or in certain cases, the Board of Immigration Appeals (“BIA”), ordered the individual excluded, deported, or removed from the United States.
Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
The day after the I-94, Arrival and Departure Record, expires; or
The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed from the United States.
This is significant because individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year bar to readmission which increases to a ten-year bar to readmission if the amount of unlawful presence is one year or greater. Those subject to the unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility.
Note the proposed memorandum is a draft only and does not currently have a binding impact on USCIS adjudications. USCIS is currently accepting comments on the draft policy memorandum. The 30-day public comment period closes on June 11, 2018, after which USCIS will review the comments and publish a final version of the memorandum. D&S will continue to provide updates following the public comment period.
UPDATE: On February 6, 2020 a U.S. District Court judge issued a permanent injunction against the implementation of this Memo, finding that it ran afoul of Federal Law. The Administration has indicated that it may seen to implement some of the policies discussed in the memo through the regulatory/rule making process and D&S will continue to provide updates as they become available.