Accrual of Unlawful Presence and F, J, and M Nonimmigrants

August 10, 2018


Effective August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B). Under the new policy, USCIS will start counting days of unlawful presence the day after an F, M, or J status violation occurs, unless the student applies for reinstatement or the student or exchange visitor is covered by some other exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation.

Read the Final USCIS Policy Memorandum

The policy memorandum updates Section 4.9.2 of the USCIS Adjudicator's Field Manual (AFM). USCIS published a draft policy memorandum on May 11, 2018, and accepted public comments until June 11, 2018. The memo contained an August 9, 2018 effective date. NAFSA submitted a comment letter on May 24, 2018. On August 9, 2018, the USCIS Feedback Updates page indicated that USCIS received 297 comments during the comment period, and that it was "reviewing your comments and will consider them before issuing final guidance." USCIS then published final guidance late that evening. Advisers should counsel students with questions about the memo's effective date and applicability to their individual situation, to consult an experienced immigration lawyer.

The original USCIS new release stated that, "[t]his policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018." The news release also recapped how INA 212(a)(9)(B) and (C) function:

"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 to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief."

The statutory provisions that created the penalties for "unlawful presence" are not new; they were added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the proposed guidance, however, USCIS would change the way it "counts" days of unlawful presence for F-1, F-2, M-1, M-2, J-1, and J-2 nonimmigrants.

  • Under prior policy, which had been in place for 20 years, the unlawful presence count began only after a formal finding of a status violation by a DHS officer in the course of a benefits application, or by an immigration judge in the course of removal proceedings.
  • Under the new policy, the unlawful presence count begins the day after the status violation.
  • Under both the current and proposed policies:
    • Remaining in the United States beyond the expiration of a date-specific Form I-94 also starts the unlawful presence clock; and
    • There are a number of important exceptions, such as unlawful presence not being counted while USCIS adjudicates a student's application for reinstatement

Some "date mechanics" regarding the August 9, 2018 effective date

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the individual had already started accruing unlawful presence under the prior policy.

  • F, M, and J nonimmigrants who had violated status prior to August 9, 2018 and are still in the United States out of status as of that date should pay close attention to the unlawful presence clock that starts ticking on August 9, 2018 under the revised USCIS policy. 180 days from Thursday, August 9, 2018 is Tuesday, February 5, 2019, according to one common web-based date calculator.
  • For example, let's say that an F-1 undergraduate student completed her bachelor's degree on May 15, 2018, and remained in the United States beyond her 60-day grace period without taking steps to extend or change her status, or apply for optional practical training or reinstatement, and is still in the United States on August 9, 2018. In this case:
    • Although she has been out of status since about July 15, 2018 (the day after her 60-day grace period), unlawful presence for purposes of INA 212(a)(9)(B) will begin to accrue on August 9, 2018 under the new policy, since her status violation occurred before August 9.
    • If she departs the United States within 180 days of August 9, 2018, she will not be subject to the INA 212(a)(9)(B) three-year bar, since she will not have accumulated 180 days of unlawful presence.
    • Say she departs the United States on March 10, 2019, though. In that case, she will have accumulated more than 180 days of unlawful presence, and her departure will trigger the three-year bar under INA 212(a)(9)(B).
    • Say she departs the United States on August 10, 2019. In that case, she will have accumulated a year or more of unlawful presence, and her departure will trigger the ten-year bar under INA 212(a)(9)(B).

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

  • 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), unless he or she makes a timely application to extend or change status

Reinstatement. The major difference between the May 11, 2018 draft memo and the August 9, 2018 final memo relates to the effect of filing an application for F-1 or M-1 reinstatement. Under the May 11 draft, if USCIS denied an F or M reinstatement application, the unlawful presence count would have related back to the original status violation that necessitated the reinstatement application. Under the August 9, 2018 final guidance, unlawful presence is not counted (i.e., the count is tolled, which means, suspended) during the period that a timely-filed F or M reinstatement application is pending. To be considered "timely" for this purpose, the reinstatement application would have to be filed within 5 months of the status violation. If USCIS ultimately denies the application for reinstatement, the unlawful presence clock will start (or restart) as of the date USCIS denies the reinstatement.

The timing of the reinstatement application is therefore important. The guidance says that unlawful presence is tolled (suspended) while a timely-filed reinstatement application is pending. It has to be filed to be pending, though, so unlawful presence can accrue before the reinstatement is filed, be tolled while the app is pending, then start back up again where it left off if USCIS denies the application. For example, a student who waits 4 months after a status infraction to file reinstatement would only have two more months following a denial of the reinstatement before coming up against 180 days and the 3-year bar.

It is not yet clear how this USCIS guidance will impact the policies of other agencies, for example:

  • ICE, in its enforcement actions
  • SEVP and DOS-EVP, regarding a student or exchange visitor's SEVIS record
  • CBP, regarding admission to the United States in nonimmigrant status
  • DOS-Consular Affairs, regarding eligibility for a nonimmigrant visa

Nor is it clear whether agency policy on visa cancellations under the INA 222(g) overstay provisions will be changed to incorporate USCIS' guidance on INA 212(a)(9)(B) unlawful presence.

Because departure from the United States can trigger a three or ten-year bar on reentry, travel is no longer a "simple" solution to a status violation. Given the serious consequences of the overstay and unlawful presence provisions, advisers would best serve students and scholars by explaining the consequences of visa overstay and unlawful presence, and by providing easy-to-understand and frequent communications about how to maintain their nonimmigrant status. Individuals needing legal advice on the impact of these provisions, including how the USCIS policy might impact their individual situation and options, should be referred to an experienced immigration attorney.

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