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Big Changes Coming for F, J, and M Nonimmigrants

5/14/2018
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The U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2018 that it is changing its longstanding policy on how unlawful presence is calculated for students and exchange visitors in F, J, and M nonimmigrant status, as well as their dependents in F-2, J-2, or M-2 status. The new policy, which will go into effect on August 9, 2018, was released to align with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States. Members of the public can submit comments on the new policy until June 11, 2018.
 
According to the new policy, individuals in F, J, and M nonimmigrant status, 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 the U.S. Department of Homeland Security (DHS) denied their 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 the Board of Immigration Appeals (BIA) ordered them excluded, deported, or removed from the U.S., regardless of any appeal filed.
Individuals in F, J, and M nonimmigrant status, 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 their course of study or authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing their course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after their I-94 expires; or
  • The day after an immigration judge or the BIA orders them excluded, deported, or removed from the U.S., regardless of any appeal filed.
Unlawful presence is time spent in the U.S. after the expiration of the period of stay authorized by DHS. If an individual accrues more than 180 days of unlawful presence during a single stay in the U.S., and then he/she departs the country, he/she may be subject to a three-year bar from readmission. Accruing more than one year of unlawful presence during a single stay and then departing can result in a 10-year bar from readmission. An individual who accrues a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the U.S., and who then re-enters or attempts to re-enter the country without inspection is permanently inadmissible. Having a U.S. admission bar means an individual is generally not eligible to apply for a visa, admission, or permanent residence without a waiver of inadmissibility or another form of relief.
 
With its announcement, USCIS explained that these policy changes are designed to reduce the number of nonimmigrants who overstay their periods of U.S. admission and clarify how USCIS implements the unlawful presence grounds of inadmissibility. In discussing the policy changes, USCIS Director L. Francis Cissna stated, “USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status…The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”
 
Worried about how this new policy might affect you? GoffWilson is here to help! Contact our office today for more information. 
Filed under:Immigration Law