New Immigration Policy Aims to Reduce Overstays and Changes How USCIS Calculates Unlawful Presence for F-1, J-1 and M-1 Nonimmigrants and their Family

On August 9, 2018, USCIS released a Policy Memorandum describing how it has changed its policy on calculating unlawful presence for foreign students (F-1), foreign exchange visitors (J-1) and the foreign vocational students (M-1) nonimmigrants, and their dependents (F-2, J-2, and M-2), admitted or otherwise authorized to be present in the U.S. in Duration of Status (D/S) or admitted until a specific date.

According to the new immigration policy, nonimmigrants who fail to maintain their nonimmigrant status will now, and as of August 9, 2018, start accruing unlawful presence, on the earliest of any of the following:

  • 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;
  • The day after completing the course of study or program;
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain date; or
  • The day after an immigration judge orders the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

Since the creation of this new policy, the Student and Exchange Visitor Information System (SEVIS) has provided and will be providing USCIS officers additional information about the nonimmigrant’s immigration’s history, including information that the F, J, or M nonimmigrant may have completed or ceased to pursue his or her course of study or activity, that previously they may not have received.

If a nonimmigrant’s request for an extension of status or change of status is denied because it was frivolously filed or because the applicant engaged in unauthorized employment, the filed petition will not protect the nonimmigrant from accruing unlawful presence. Additionally, if a request for an extension or change of status is denied because it was untimely filed, the application will also not protect the nonimmigrant from accruing unlawful presence.

Nonimmigrants under 18 years of age do not accrue unlawful presence.  Therefore, any F, J or M nonimmigrant who is under 18 years of age will not accrue unlawful presence.  Additionally, the F, J, or M nonimmigrants may be otherwise protected from accruing unlawful presence in certain situations.  Please contact attorney Helen S. Bennett at http://www.servingtheworld.net; (561) 393-7037 or  hbennett@servingtheworld.net for more information and an individualized consultation to determine whether you are accruing unlawful presence or whether your situation is one which does not trigger unlawful presence under INA 212(a)(9)(B) and INA 212(a)(9)(C).

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