On August 9, 2018, USCIS issued a new policy memorandum revising the determination as to when individuals who enter the United States on certain nonimmigrant visas (F, J, and M) begin to accrue “unlawful presence.”

Generally, academic students (F), exchange visitors (J), and vocational students (M) are admitted to the U.S. for the “duration of their status,” which allows them to remain in the U.S. as long as they maintain their nonimmigrant status. This is usually accomplished by staying engaged in a full course of study or exchange program, not working without authorization, and abiding by all terms of their visa.

Previously, individuals admitted to the U.S. on F, J, and M nonimmigrant visas did not accrue unlawful presence until the day after their Form I-94 expired (if an expiration date was given), or until a USCIS officer or immigration judge determined that they violated their nonimmigrant status.

The new policy memorandum changes the way in which unlawful presence is determined for F, J, and M nonimmigrants.

• F, J, or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018 will begin to accrue unlawful presence as of August 9, 2018, unless they had already started accruing unlawful presence before that date.
• F, J, or M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018 will being to accrue unlawful presence:
  • The day after they no longer pursue the course of study or authorized activity, or the day after they engage in unauthorized activity
  • The day after completing their course of study or program, plus any authorized grace period
  • The day after their Form I-94 expires, if admitted until a certain date
  • The day after an immigration judge orders the nonimmigrant removed

The accrual of unlawful presence can have serious immigration consequences. Someone who accrues more than 180 days of unlawful presence and then departs the U.S. may be barred from returning to the U.S. for three years, and a person who accrues a year or more of unlawful presence may be barred from returning for ten years.

Under this new policy memorandum, F, J, and M nonimmigrants may inadvertently violate their status and accrue unlawful presence, resulting in serious immigration consequences.

If you have any questions about how this new change might affect your immigration case, please call us and schedule a consultation.