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

August 27, 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 is covered by an 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.

View Recorded NAFSA Presentations on the USCIS ULP and NTA Policies

Background

USCIS had 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 new policy'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

Here are some things to consider about the August 9, 2018 effective date of the new policy.

If status violation occurred before August 9, 2018


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 admitted for D/S 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, 2018.
  • 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).

If status violation occurs on or after August 9, 2018


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 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; there was not "tolling" (pause) of the unlawful presence count while the application was pending.
  • 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 a timely-filed application for reinstatement, the unlawful presence clock will start (or restart) as of the date USCIS denies the reinstatement. There is no tolling provision that covers the time that a J-1 reinstatement application is pending with the Department of State.

The language of the guidance, combined with the August 9 effective date, establishes the following rules and principles.

Suspension of unlawful presence count while a timely-filed reinstatement application is pending


F-1 or M-1 reinstatement timely-filed within 5 months

An F-1 or M-1 reinstatement application filed within 5 months of a status violation is considered to be timely filed under USCIS unlawful presence policy guidance. A timely-filed reinstatement application suspends the counting of unlawful presence between the date the application was filed and the date USCIS adjudicates it. Remember, however, that even though a timely filing of a reinstatement application suspends the count of unlawful presence while the application is pending with USCIS, it does not mean that the reinstatement applicant is in valid nonimmigrant status while the application is pending.

F-1 or M-1 reinstatement filed after 5 months

An F-1 or M-1 reinstatement application filed more than 5 months (approximately 150 days) after a status violation, does not suspend the count of unlawful presence while USCIS adjudicates the application. Remember that there is also a higher burden of proof for reinstatement applications filed more than 5 months after a status violation. DSOs can proactively identify students nearing the 5-month point by using the Alert List: Terminated Students Nearing Their Reinstatement Deadline. This alert list includes student records terminated between 90 to 150 days ago.

J-1 reinstatement requests

The new USCIS policy does not include a tolling provision for J reinstatement requests, which are adjudicated by the Department of State. USCIS Adjudicator's Field Manual 40.9.2(b)(1)(E)(iii) states only that USCIS will not count unlawful presence during "The period of time a J-1 nonimmigrant was out of status, if he or she is granted reinstatement under 22 CFR 62.45."

Unlawful presence count erased if reinstatement approved


If USCIS approves an F-1 or M-1 reinstatement, or if DOS approves a J-1 reinstatement, the entire count of unlawful presence arising from the status violation that was the subject of the reinstatement application is erased. This rule applies regardless of whether the student filed a timely or untimely reinstatement application, and to all successful J-1 reinstatement applicants.

Note that although reinstatement restores nonimmigrant status and erases unlawful presence, reinstatement is not approved nunc pro tunc for purposes of determining whether an alien continuously maintained nonimmigrant status for other purposes.

Regarding J-1 reinstatements, the USCIS guidance refers to 22 CFR 62.45, the provision in the J-1 regulations that governs "Reinstatement to valid program status." That section covers corrections for minor or technical infractions as well as reinstatement for substantive violations. Minor or technical infractions are corrected by the RO/ARO through the Correct Minor or Technical Infraction function in SEVIS, whereas substantive violations are handled through the Reinstatement Request function, which must be adjudicated by the Department of State. In an August 23, 2018 USCIS teleconference, USCIS stated that they would consider corrections of minor or technical infractions the same as they would reinstatement by DOS, and that an RO/ARO's correction of a minor or technical infraction that "makes whole" the exchange vistor's program status would also erase any unlawful presence that may have accumulated following the infraction.

Unlawful presence and the denial of a reinstatement application


If USCIS denies a timely application for F-1 or M-1 reinstatement that was filed within 5 months of the status violation, USCIS will determine the count of unlawful presence as follows:

If the underlying status violation occurred on or after August 9, 2018, USCIS will calculate unlawful presence beginning the day after the status violation, pause counting on the day the reinstatement application is timely filed, and resume counting the day after the reinstatement application is denied.

If the underlying status violation occurred before August 9, 2018, unlawful presence will be calculated as follows, depending on when the timely reinstatement application was filed:

  • If the reinstatement application was filed before August 9, 2018, and then denied on or after August 9, 2018, USCIS will start counting unlawful presence the day after the reinstatement denial.
  • If the reinstatement application is filed on or after August 9, 2018, but based on a pre-August 9, 2018 status violation, USCIS will start counting unlawful presence on August 9, 2018, pause counting on the day the reinstatement application is timely filed, and resume counting the day after the reinstatement application is denied.
  • If the pre-August 9, 2018 status violation related to staying beyond the expiration of a date-specific Form I-94 or an immigration judge or DHS had already made a formal finding of a status violation, however, USCIS will count unlawful presence count starting on that earlier date, pause the count while the timely-filed reinstatement application is pending, then resume the count the day after the reinstatement application is denied.

If USCIS denies an untimely application for F-1 or M-1 reinstatement that was filed more than 5 months after the status violation, or if DOS denies an application for J-1 reinstatement or an RO/ARO does not approve a correction of a minor or technical infraction, the unlawful presence count is not tolled (not paused) while the reinstatement application is pending, and unlawful presence will be calculated as follows:

  • If the underlying status violation occurred on or after August 9, 2018, unlawful presence will be calculated from the day after the status violation, not the day after the reinstatement denial.
  • If the underlying status violation occurred before August 9, 2018, unlawful presence will be calculated starting August 9, 2018, not the day after the reinstatement denial, unless the pre-August 9, 2018 status violation related to staying beyond the expiration of a date-specific Form I-94 or an immigration judge or DHS had already made a formal finding of a status violation, in which case the unlawful presence count will have begun as of that earlier date.

In addition to starting or restarting the count of unlawful presence, a reinstatement denial also could eventually result in the issuance of a Notice to Appear (NTA) and the commencement of removal proceedings against the student or exchange visitor (see www.nafsa.org/nta).

Choosing to travel and reenter rather than apply for reinstatement


For purposes of the 3 and 10-year bars, days of unlawful presence are not counted in the aggregate over multiple visits to the United States; rather, unlawful presence is counted only during any single stay [USCIS Adjudicator's Field Manual 40.9.2(b)(4)(A)].

Although a departure from the United States stops and resets the unlawful presence clock, a departure also triggers the penalty provision (3 or 10-year bar) under INA 212(a)(9)(B), if more than 180 days of unlawful presence had been accumulated during that stay before the departure. Just as they should counsel students and exchange visitors considering reinstatement to consider getting legal advice, P/DSOs and RO/AROs should also take care in advising out-of-status students and exchange visitors about travel and re-entry, and should advise those considering this to consult an experienced immigration lawyer.

If a student or exchange visitor decides to depart the country and re-enter with a new I-20 or DS-2019, rather than apply for reinstatement, the student or exchange visitor must assess (ideally with legal counsel) whether a departure from the United States would trigger a 3 or 10-year reentry bar, depending on how much unlawful presence the individual had accumulated before departing.

It is unclear whether DOS and CBP will update their guidance on whether the underlying status violation that triggers the unlawful presence count under USCIS policy also triggers the automatic cancellation of a nonimmigrant visa under INA 222(g), for purposes of determining whether a new F, M, or J visa would also be required. So far, DOS has not updated its FAM section on INA 222(g) visa cancellations. Students and exchange visitors with questions should consult an experienced immigration lawyer.

A prior SEVIS record termination may also show up in government databases (like the CCD and IBIS) as a possible ground for ineligibility for a visa or admission. If such a "hit" appears when the student or exchange visitor applies for a benefit, the consular officer or immigration officer must resolve that hit before granting the benefit.

Other Considerations

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.

Primary ULP Sources

Government Guidance

NAFSA Resources

Regulatory Info

Regulatory Info Home