On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum for public comment which changes the way foreign nationals in F, J, and M visa status accrue unlawful presence in the U.S. The guidance will go into effect on Aug. 9, 2018.

Under current policy, individuals in F, J, and M status admitted for the duration of their status (D/S) who violate the terms of their admission to the U.S. are out-of-status, and are deportable, but do not accrue unlawful presence toward the three- and ten-year bars to admission to the U.S. until the Department of Homeland Security (DHS), an Immigration Judge (IJ), or the Board of Immigration Appeals (BIA) makes a formal finding of a status violation. An individual subject to the three- or ten-year bar due to lengthy periods of unlawful presence in the U.S. will be inadmissible to the U.S. for the applicable time period.

Under the new policy beginning on Aug. 9, individuals in F, J, and M status who violate the terms of their lawful admission to the U.S. will begin to accrue unlawful presence on the earliest of any of the following:

  1. The day after the individual no longer pursues the course of study or the authorized activity for which he/she was admitted, or the day after he/she engages in an unauthorized activity.
  2. The day after the individual completes his/her course of study or program (including any authorized practical training and authorized grace period).
  3. The day after the individual’s Form I-94 expires, if he/she is admitted to the U.S. until a certain date instead of D/S.
  4. The day after an IJ or the BIA orders the individual excluded, deported or removed.

In addition, under the new policy individuals in F, J, and M status who failed to maintain their non-immigrant status before Aug. 9, will start accruing unlawful presence based on that failure on Aug. 9, unless the individual already started accruing unlawful presence on the earliest of the following:

  1. The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her non-immigrant status while adjudicating a request for another immigration benefit.
  2. The day after the individual’s Form I-94 expires, if he/she is admitted to the U.S. until a certain date instead of D/S.
  3. The day after an IJ or the BIA orders the individual excluded, deported or removed.

The stated purpose of the change in policy is “to reduce the number of non-immigrants who overstay their periods of admission and clarify how USCIS implements the unlawful presence grounds of inadmissibility.”

Due to its potential to bar individuals in F, J, and M status from the U.S. for three or ten years following lengthy violations of status, foreign nationals in these statuses and their respective employers should carefully review this new policy in consultation with immigration counsel to ensure they understand which actions trigger the individual’s accrual of unlawful presence in the U.S.