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; (561) 393-7037 or 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).

Expired Versions of USCIS Applications Remain Valid Due to Government Shutdown, including DACA

Due to the government shutdown, USCIS is not able to update versions of their application forms. USCIS will, however, continue to accept all those expired versions of forms until new approvals can be obtained when the shutdown is over.

In other words, all USCIS forms, including the DACA application, that have an expiration date that falls during the government shutdown will continue to be accepted until a new version can be approved once the shutdown is over.

DACA, or the Deferred Action Childhood Arrivals, form of relief will remain valid despite its facial expiration date of January 31, 2019 until further notice and until the Supreme Court addresses it. Renewals of DACA applications can be filed up to 180 days prior to their expiration and USCIS will process them as they are received.

Federal Register Announcement: Temporary Protected Status Country Designations

Beneficiaries under the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS status is not withdrawn under INA section 244(c)(3) or 8 CFR 244.14 because of ineligibility.

Through this Federal Register Notice, DHS automatically extends through April 2, 2019, the validity of EADs with the category codes“A-12” or “C-19” and one of the expiration dates shown below that have been issued under the TPS designations of Sudan and Nicaragua:

11/02/2017; 01/05/2018; 11/02/2018; 01/05/2019

However, the extension of this validity period applies only if the eligible TPS beneficiary properly filed for TPS re-registration during the most recent DHS-announced registration period for the applicable country, or has a re-registration application that remains pending. In addition, the extension does not apply if the TPS of any such individual has been finally withdrawn.

If it becomes necessary to comply with statutory requirements for TPS re-registration during the pendency of the Court’s Order or any superseding court order concerning the beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador, DHS may announce re-registration procedures in a future Federal Register


Notice. See section 244(c)(3)(C) of the INA; 8 CFR 244.17.

Press Release: Asylum History

The asylum system was established in 1968 when the United States signed the protocol to the 1951 United Nations Convention Related to the Status of Refugees, and then passed the 1980 Refugee Convention.

These measures followed public outcry about the treatment by the United States and other countries of boatloads of refugees who sought protection from Nazi Germany but were turned away. In the case of the SS St. Louis, more than 900 people were returned to Europe, where 254 died in the Holocaust.

The law says a person may apply for asylum at a port of entry or from within the United States. People generally may apply for asylum up to one year after their arrival in the United States. An application for asylum may also be used as a defense from deportation. The law explicitly permits people who are in the United States to seek asylum, whether they entered with documentation or not.

In order to seek asylum at a port of entry, asylum seekers declare that they fear being retured to their home country and wish to seek asylum. They are to be promptly interviewed by an asylum officer who makes an initial determination whether their fear is credible. If so, their case will go before a judge for a final decision. If not, they may appeal in immigration court or be placed in removal proceedings.

These laws and procedures for asylum were established by Congress in accordance with our obligations under the international accords we signed with our allies to protect refugees worldwide. Any of the migrants traveling through Mexico who reach our border should be processed through the asylum system, just as all migrants arriving at our border have been for many years. Asylum is the law of the land, and the administration must follow that law as enacted by Congress.

Catholic social teaching holds that people have a right to migrate to sustain their lives and the lives of their families. It also says governments have a right to regulate their borders, and must do so with justice and mercy. See here for further explanation and links to resources.

For more information about asylum law and policy, check out the following resources from the CLINIC’S partners and other experts:

Reporters: To interview one of CLINIC’s asylum law experts, contact Patricia Zapor, communications director, at 301-565-4830. This press release is being forwarded from the Catholic Legal Immigration Network, Inc. CLINIC advocates for humane and just immigration policy. Its network of nonprofit immigration programs—330 organizations in 47 states and the District of Columbia—is the largest in the nation.