Students, exchange visitors to face stricter calculation of ‘unlawful presence’

Foreign students, exchange visitors and their family members will face stricter rules on how “unlawful presence” is calculated under a new policy released today by U.S. Citizenship and Immigration Services.

The agency posted a policy memorandum that takes effect Aug. 9 , 2018 and that supersedes previous longstanding policy. Under the memorandum, nonimmigrants with F, J or M status will be subject to the following rules on accruing unlawful presence:

Those who failed to maintain their F, J or M status before Aug. 9 2018, will start accruing unlawful presence on that date unless they had already started accruing unlawful presence on the earliest of any of the following:

• The day after the Department of Homeland Security denied their request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit.
• The day after their I-94 expired.
• The day after an immigration judge or the Board of Immigration Appeals ordered them excluded, deported, or removed (whether or not the decision is appealed).

Those who fail to maintain their F, J or M status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of the following:

• The day after they stop pursuing their course of study or authorized activity, or the day after they engage in an unauthorized activity.
• The day after completing their course of study or program, including any authorized practical training and any authorized grace period.
• The day after their I-94 expires.
• The day after an immigration judge or the BIA orders them excluded, deported, or removed (whether or not the decision is appealed).

Background: This change in policy is intended to comply with President Donald Trump’s Executive Order on enhancing public safety by strengthening immigration enforcement. Foreign nationals remain subject to re-entry bars for three or ten years if they have accrued more than 180 days of unlawful presence during a single stay, and a permanent bar if they accrue more than one year of cumulative unlawful presence.

The policy memo will be open to public comments for a 30-day period ending June 11. Individuals or employers interested in commenting may contact their BAL professional and visit the USCIS website for instructions.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.