180-day deadline approaching for foreign students and exchange visitors under new USCIS unlawful presence policy

1 Feb 19

UNITED STATES

IMPACT – HIGH

On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) issued the final policy memo clarifying procedures for the accrual of unlawful presence for foreign students and exchange visitors. Foreign students and exchange visitors in F, J or M status are reminded that new rules on the calculation of unlawful presence took effect Aug. 9, 2018. This means the potential bars for inadmissibility for accruing 180 days or more of unlawful presence from that date would be triggered on Feb. 5, 2019.

Key points:

  • The Feb. 5, 2019 180-day milestone is important because F, J and M nonimmigrants who accrue more than 180 days of unlawful presence and who thereafter depart the U.S., are barred from re-entering for three years. Those who accrue more than one year of unlawful presence are barred for 10 years.
  • Under the new calculation rules, F, J and M nonimmigrants will accrue unlawful presence if they failed to maintain status on or after Aug. 9, 2018. Failure to maintain status may include ending their course of study or authorized practical training, engaging in unauthorized activities (such as unauthorized work), remaining in the U.S. beyond their I-94 authorized stay, or receiving an order of exclusion or deportation by an immigration court.
  • Under the new policy, F, J, or M nonimmigrants who failed to maintain status before August 9, 2018 began accruing unlawful presence based on that failure on August 9, 2018, unless they had already started accruing unlawful presence under prior policy.
  • F and M nonimmigrants who fall out of status and file for reinstatement of that status within five months of having fallen out of status will not accrue unlawful presence during the period that their reinstatement application is pending with USCIS.

Background: The initial policy memo issued in May 2018 by USCIS changed the way the agency calculates unlawful presence for nonimmigrants in F (student), M (vocational student), and J (exchange visitor) status. These individuals will accrue unlawful presence if they fail to maintain status, and unlawful presence will be counted from the day after they violate their status. Under previous longstanding policy, unlawful presence was not triggered for students (who are admitted for “duration of status” rather than for a specific time period) until the government determined that the individual was out of status. Although comments opposing the change were provided to USCIS, the final policy change was issued in August 2018. In October 2018, a group of colleges and universities challenged the policy in court, but it remains in effect today as the lawsuit continues to progress.

BAL Analysis: F, J and M nonimmigrants and their employers should be careful to avoid any unlawful presence triggers and to track any time that could be deemed failure to maintain status. Those who have failed to maintain status since Aug. 9 may consider filing for reinstatement if they are within five months of having fallen out of status. Individuals who are approaching 180 days of unlawful presence would need to depart the U.S. before Feb. 5 to avoid the three-year re-entry bar.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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