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USCIS Revises Accrual of Unlawful Presence for F, J, and M Non-immigrants

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that may soon change the way the accrual of unlawful presence is calculated for individuals currently in the United States on an F, J, or M non-immigrant visa type, as well as their dependents accompanying them in the United States.

The new policy proposes that F, J, and M nonimmigrants who fail to maintain their nonimmigrant status before August 9, 2018, will begin accruing unlawful presence on that day.

Generally, F, J, and M nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, will begin to accrue unlawful presence the day after they abandon their course of study or authorized activity, or engage in an unauthorized activity.

Current Policy

Since 1997, it has been USCIS policy to begin calculating the accrual of unlawful presence, for a F or J nonimmigrant admitted to the United States in duration of status (D/S), one day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

F, J, and M nonimmigrants admitted for a specified date (not D/S) began to accrue unlawful presence on the day their Form I-94 expired, on the day after finding the nonimmigrant in violation of their nonimmigrant status while adjudicating a request for another immigration benefit (such as a change of status petition) or on the day after an immigration judge has ordered the exclusion, removal, or deportation of the nonimmigrant, whichever comes first.

DHS recently conducted a study to determine the number of nonimmigrants in F, J, or M status who have overstayed. For FY 2016, DHS calculated that out of a total of 1,456,556 aliens in F, J, and M nonimmigrant status expected to change status or depart the United States, 6.19% of F nonimmigrants, 3.80% of J nonimmigrants, and 11.60% of M nonimmigrants actually overstayed their status.

This minuscule percentage has caused USCIS to revise its policy and change how the accrual of unlawful presence is calculated for this demographic.

New Policy Proposal

According to the memorandum, the revised policy would take effect on August 9, 2018 with respect only to F, J, or M non-immigrants and their dependents:

The new policy clarifies that F, J and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence as outlined below:

F, J, or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018.

F, J, or M nonimmigrants who fail to maintain their nonimmigrant status before August 9, 2018, start accruing unlawful presence based on that failure, on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien 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 nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA),9 ordered the alien excluded, deported, or removed (whether or not the decision is appealed).

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or August 9, 2018

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status, on or after August 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 Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Under the new policy immigration officers are instructed to consider the following to determine the accrual of unlawful presence:

  • Information contained in the systems available to USCIS
  • Information contained in the alien’s record and
  • Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if any

USCIS has opened the policy for public comment for a period of 30 days ending on June 11, 2018. After that point USCIS will consider feedback provided by the public and decide whether to implement the rule in August.

DISCLAIMER: PLEASE NOTE THAT THIS PROPOSED POLICY IS NOT YET IN EFFECT