The Policy Memorandum, effective August 9, 2018, Changes the Policy in
which F, J, and M Nonimmigrants Accrue Unlawful Presence
On August 9, 2018, the USCIS released a new policy memorandum that revises
and supersedes their previous May 10, 2018 policy memorandum titled “Unlawful
Presence and F, J, and M, Nonimmigrants” and all other previous
guidance pertaining to this matter.
Previously, F, J, and M Nonimmigrants began to accrue unlawful status “on
the day after USCIS formally found a nonimmigrant status violation while
adjudicating a request for another immigration benefit or on the day after
an immigration judge ordered the applicant excluded, deported, or removed.”
In cases where an F, J, or M Nonimmigrant maintained an I-94 record that
expired on a specific date (instead of having been admitted for a Duration
of Status), the nonimmigrant could also have accrued unlawful presence
following the expiry of their I-94.
The USCIS has now stated that due to updated technology, such as the Student
and Exchange Visitor Information System (SEVIS), they are better able
to monitor F, J, and M Nonimmigrants who may have violated their status,
but who have not yet begun to accrue unlawful presence under previous
regulations. The USCIS has stated that in an effort to “reduce the
number of overstays” in the F, J, and M nonimmigrant categories,
they will now calculate unlawful presence for F, J, and M Nonimmigrants
(and their dependents) in the following ways:
- F, J, and M Nonimmigrants who have already overstayed and/or failed to
maintain their status before the issuance of this memorandum (August 9,
2018) will begin to accrue unlawful presence on August 9, 2018 unless
they have already previously started to accrue unlawful presence based
on the previous regulations;
-
F, J, and M Nonimmigrants who have failed to maintain their status on or
after August 9, 2018 will begin to accrue unlawful presence on the earliest
of the following circumstances:
- “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 (including
any authorized practical training plus any authorized grace period);”
- “The day after the Form I-94 expires” if not granted a Duration
of Status;
- “The day after an immigration judge orders the alien excluded, deported,
or removed (whether or not the decision is appealed).”
In other words, accrual of unlawful presence will no longer be based only
on when either the USCIS or an Immigration Judge formally finds a nonimmigrant
status violation (or after the expiry of an I-94). The accrual of unlawful
presence will now begin the day after any violation of the F, J, or M
Nonimmigrant’s status, as well.
In addition, as part of the revision to the May 2018 memorandum, the new
policy memorandum stipulates that starting August 9, 2018, “F and
M nonimmigrants who fall out of status and timely file for reinstatement
of that status will have their accrual of unlawful presence suspended
while their application is pending.” The accrual of unlawful presence
will only continue if the reinstatement of status is denied, and the calculation
of unlawful presence will begin on the day after the denial.
It is important to note that a
timely filed reinstatement of status must fall within 5 months of the nonimmigrants’
initial failure to maintain their F, J, or M status.
Please feel free to contact USILAW with any questions or issues that you
may have. You may reach us via telephone at +1 (202) 618 4540 or via email at
anindita@usilaw.com.