USCIS Revises Policy for F, M, and J Nonimmigrants

August 15, 2018

USCIS has announced an important policy change as to how the agency will start counting “unlawful presence” for 3 visa categories that are frequently used by those seeking to enter the United States to complete post-secondary education or training: student visas (F-1); vocational student visas (M-1), and exchange visitor visas (J-1).  The changes also apply to dependent visas in each category (F-2, M-2, and J-2, respectively).   If you are in F-1, J-1, or M-1 status or a dependent of someone in that status, it is critical that you understand these new changes and the significant risks you face if the USCIS finds that you have failed to maintain your status.

Previously, unlawful presence for F, J, and M nonimmigrants who were admitted to the US for the duration of their status, i.e. “D/S,” started accruing unlawful presence as of the day the USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit (typically a change in status or a request for reinstatement) or on the day after an immigration judge ordered the applicant excluded removed (deported) from the US, whichever occurred first.

As of August 9, 2018,  the following new policy will be in effect:

  • F, J, or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018: start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant 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 nonimmigrant 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 ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).
  • F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018: 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 orders the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed

Note that an F-1 or M-4 applicant who falls out of status and then applies for a reinstatement of status will have their accrual of unlawful presence suspended while their application is pending, where “a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing.”  Regarding J nonimmigrants, USCIS states that “If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.”

 Finally, as a reminder, the accrual of unlawful presence for more than 180 days during a single stay in the US would result in a foreign national’s bar from the U.S. for three years (unless a waiver can be obtained) and which is triggered upon the foreign national’s departure from the U.S.  A period of unlawful presence of more than one year, whether in a single stay or during multiple stays in the US, would trigger a ten year bar upon the foreign national’s departure and similarly a waiver would have to be obtained, if possible, for the foreign national to return to the US any earlier..

If you are a nonimmigrant in either of these categories and have fallen out of status or are even considering any changes that could result in the USCIS finding that you are longer pursuing your course of study or the authorized activity, you should consult an immigration attorney as quickly as possible. Please feel free to contact the attorneys at Landau, Hess, Simon & Choi by clicking here or calling 215-925-0705.

 


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