USCIS Announces a Change in Policy Regarding the Calculation of Unlawful Presence for F, M and J Nonimmigrants

In a new policy memorandum released on May 10th, United States Citizenship and Immigration Services (USCIS) issued new and superseding guidance to its officers for calculating the unlawful presence of F nonimmigrant students, J nonimmigrant exchange visitors and M nonimmigrant vocational students in the United States. 

This new guidance will take effect on August 9, 2018, and does not affect current policy guidance regarding nonimmigrants in other status categories.

Previous Policy

The previous policy guidance was consolidated in the 2009 USCIS Interoffice Memorandum, "Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act."

Under it, and technically in enforcement since 1997, F, J and M nonimmigrants who were admitted until a specific date accrued unlawful presence the day following the expiration of their Form I-94, the day following a USCIS finding of a nonimmigrant status violation while adjudicating a request for another immigration benefit or the day following a judge's order for an applicant's exclusion, deportation or removal (whether or not the decision was appealed), whichever occurred first. The same applied toF, J and M nonimmigrants staying in the U.S. under D/S (duration of status).

Part of the reason USCIS cites for the current change in policy is the new technology and systems that the Department of Homeland Security now has in monitoring nonimmigrants, including information indicating that a nonimmigrant in one of these statuses may have completed or ceased to pursue his or her course of study or activity, making that individual an overstay. USCIS is thus updating its policy in order to reduce the overstay population. 

The New Method of Determining Unlawful Presence Accrual

The policy for determining the accumulation of unlawful presence for the applicable nonimmigrants found to be in violation before August 9th of this year remains unchanged.

However, after August 9, 2018, F, J or M nonimmigrant begin accruing unlawful presence due to failure to maintain status upon the earliest occurrence of any of the following:

• The day after the nonimmigrant no longer pursues the course of study or the authorized activity, or the day following the engagement in an unauthorized activity.

• The day following the course of study or program's completion (including any authorized practical training in addition any authorized grace period as outlined in 8 CFR 214.2).

• The day following the Form I-94's expiration if admission was stipulated until a specific date.

• The day after an immigration judge or the BIA orders the alien excluded, deported or removed, regardless of whether or not the decision was appealed.

In assessing such cases, USCIS officers will be considering information as related to the nonimmigrant's history, including but not limited to:

• Information contained in the systems available to USCIS.

• Information contained in the alien’s record.

• Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if any. 

As for dependents, their stay is contingent on that authorized for the principal beneficiary and his or her lawful maintenance of it, or it may be forfeited by the dependent's own unlawful conduct or circumstances.

Considerations

In summation, it is important that F, J and M nonimmigrants maintain their lawful status through their continued involvement in the studies or activities granting them such status. It is also important to note that the previously authorized situations and grace periods in which such nonimmigrants do not accrue unlawful presence still apply.