New Rule on Unlawful Presence Puts Students At Risk

By: Reuben Seguritan



August 22, 2018



The United States Citizenship and Immigration Services (USCIS) recently published the final policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” which became effective on August 9, 2018. This new policy memorandum clearly shows that the USCIS is abandoning the old rules and imposing harsh rules on the unlawful presence of the following nonimmigrants: academic students (F visa), vocational students (M visa), and exchange visitors (J visa).


The Immigration and Nationality Act (INA) imposes re-entry bars on immigrants who accrue “unlawful presence” in the United States, leave the country, and want to re-enter lawfully. “Unlawful presence” is not defined in the INA or regulations. However, the USCIS Adjudicator’s Field Manual includes guidance on determining when a noncitizen accrues unlawful presence. Generally, a person who enters the United States without inspection, or who overstays a period of authorized admission, will be deemed to have accrued unlawful presence. Individuals who accrue more than 180 days, but less than one year, of unlawful presence are barred from being re-admitted or re-entering the US for three years. Whereas those who accrue more than one year of unlawful presence are barred from re-entering the US for ten years.


As a general rule, nonimmigrants with F, M or J visas could lawfully stay in the US for the duration of their nonimmigrant status or “D/S” which is annotated on their Form I-94 Arrival/Departure Record issued by the US Customs and Border Protection upon their arrival. This means that in order to remain with nonimmigrant status in the US, the student must maintain a full course of study or remain in the exchange program, not engage in unauthorized employment or other unauthorized activities, and complete the academic or exchange program within the time allowed or obtain an extension from the school or exchange program before the expiration of the period.


Under the old rules, a nonimmigrant with an F, M or J visa would only be unlawfully present in the US in two ways. First, when the USCIS determined in a formal status violation that he had indeed been unlawfully present while adjudicating an immigration benefit, or second, when he was declared unlawfully present by an immigration judge in removal proceedings.


However, under the new rules of the USCIS, any violation could make the nonimmigrant with the F, M or J visa unlawfully present in the US, even without knowing it. The USCIS is instructed to consider any information contained in its systems; information contained in the individual’s “A File” and any information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).


An example is if the student asked and was permitted by his adviser to drop a certain class but not from the designated school officer (DSO), he will no longer have the full course of study for one semester required to maintain his status. He has therefore violated the terms of his visa status. Another example would be if the student worked in his school for more hours than allowed, then he has violated the terms of his status.


The new rules state that for status violations that occurred before August 9, 2018, the nonimmigrant is unlawfully present beginning the day after the authorized period of admission expires. If the Department of Homeland Security (DHS) determines a status violation occurred, the nonimmigrant is unlawfully present beginning the day after the DHS denied a request for an immigration benefit.  If an immigrant judge ordered the nonimmigrant removed, then he is unlawfully present beginning the day after the removal order is issued, regardless of whether the decision is appealed. In any other case, if the nonimmigrant fails to maintain his status before August 9, 2018, then he is unlawfully present beginning on August 9, 2018.


For violations that occur on or after August 9, 2018, the nonimmigrant will be deemed to be unlawfully present in the US on the earliest of: 1. The day after he no longer pursues the course of study or authorized activity, or the day he engages in unauthorized activity; 2. The day after completing the course of study of study or program, including practical training and any authorized grace period; 3. The day after the period of authorized stay expires, if admitted until a date certain; 4. The day after an immigration judge orders nonimmigrant removed, regardless of whether the decision is appealed.


The status of the spouse and children of the F, J, or M nonimmigrant is dependent on the status of the principal nonimmigrant. However, their period of authorized stay could be shorter if they commit any act which is in violation of their status.