New Unlawful Presence Rules For F, J And M Nonimmigrants

USCIS has issued a new policy memorandum for calculating unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, and their dependents.

Under the new policy that will go into effect on August 9, 2018, F, J, and M nonimmigrants who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

F, J, or M nonimmigrants who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity; or
  • The day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

USCIS is accepting comments on the policy memorandum. The 30-day public comment period closes on June 11, 2018.

It should be noted that individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States.

Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status unless they are eligible for a waiver of inadmissibility or another form of relief.

If you have violated the terms of your visa, or overstayed your visa in the U.S., or out-of-status in the U.S. currently, Consult VisaPro immigration attorney immediately to help you overcome such a situation. Our experienced attorneys will be happy to assist you.

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