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).

Immigration Analysis Required for Violation of State Drug Statute


27 I&N Dec. 560 (BIA 2019)

Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.

New Fingerprint Procedure between USCIS and ICE for Non-Detained Cases

Fingerprints, once taken by non-detained applicants, expired after 15 months.  Previous protocol required attorneys to request new fingerprint appointment notices from the clerks at the Office of Chief Counsel on behalf of their clients prior to their expiration dates so that their clients could appear at those biometrics appointments to renew their fingerprints.  Expired fingerprints could have potentially delayed the applicant’s pending cases before the Immigration Court or caused them to be denied.  As such, it was very important for attorneys to stay on top of the expiration dates of their client’s cases.

United States Citizenship and Immigration Services (USCIS) and ICE Enforcement and Removal Operations (ICE ERO) entered into an agreement that went into effect nationwide on March 31, 2016 for non-detained individuals with cases pending before the Executive Office for Immigration Review (EOIR).   The new process maximizes efficiencies for both the government (ICE, USCIS and EOIR) and for non-detained individuals in EOIR proceedings by eliminating the costs and delays created by requiring individuals to provide new fingerprints when, in most cases, fingerprints results can be updated with information already available in either an ICE or USCIS system.

All individuals must continue to follow the instructions provide in EOIR proceedings that explain how to file copies of the applications for relief or protection from removal from USCIS.  However, as a result of the new agreement, ICE will attempt to update the fingerprints of applicants from information already available to ICE ERO. If ICE is able to update the fingerprint results, the applicant will not need to take any further action, after they have had their fingerprints taken once.

In the rare event that ICE ERO is unable to update the fingerprint results, it will follow the protocol established in the USCIS-ICE agreement by sending a request to USCIS to update the applicant’s fingerprint results. If, after receiving the request from ICE, USCIS is unable to update the fingerprint results through USCIS systems, USCIS will notify ICE ERO. Then ICE ERO will submit a request to USCIS to schedule an appointment for fingerprinting at a USCIS Application Support Center (ASC). USCIS expects that this situation, in which an applicant does not have fingerprints in either the ICE or USCIS system, will rarely occur.

ICE Offices of the Chief Counsel (ICE OCC’s) will assist ICE ERO offices by providing them with a list of cases that need to have fingerprint results updated.  As such, individuals should not appear at an ASC to update their fingerprints unless they receive an ASC appointment notice from USCIS.  Individuals who appear at an ASC without an appointment notice from USCIS will not be fingerprinted.

ICE OCC’s will need to coordinate with their local ICE ERO offices to ensure that there are local procedures, based on this USCIS-ICE agreement, to assist with fingerprinting for non-detained cases in which the applicant’s results have expired.

Should you have any questions about your fingerprints and/or a biometrics appointment and new procedure, please contact attorney Helen S. Bennett, Esq. at or calling her office at (561) 393-7037.

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.