USCIS has updated their policy regarding unlawful presence.

On Aug. 9, 2018, USCIS published a policy memorandum (Unlawful Presence and F, J, and M Nonimmigrants) that updated AFM Chapter 40.9.2(b)(1)(E) and outlined changes on how those in student (F), exchange visitor (J), and vocational student (M) nonimmigrant status accrue unlawful presence. The policy memorandum also applies to the spouses and children of F, J, and M nonimmigrants. These changes went into effect on Aug. 9, 2018 and were made to reduce the number of overstays and improve how USCIS implements the unlawful presence grounds of inadmissibility.

Under the new policy, those in F, J, and M nonimmigrant status accrue unlawful presence as follows:

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before Aug. 9, 2018, start accruing unlawful presence based on that failure on Aug. 9, 2018, unless they have already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M was admitted for a date certain; or
  • The day after an immigration judge ordered them excluded, deported, or removed (whether or not the decision is appealed).

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her statuson or after Aug. 9, 2018, 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 (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders them excluded, deported, or removed (whether or not the decision is appealed).

Note: If USCIS relies solely upon information provided in the Student and Exchange Visitor Information System (SEVIS) to make an unlawful presence determination, the applicant will be given an opportunity to rebut evidence provided in SEVIS before a final decision is made.

If you think that you may be accruing unlawful presence in the United States, it is critical that you speak to an experienced immigration attorney.  Contact us today at (714) 702-5222.

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