News & Insights

Changes for Accrual of Unlawful Presence by Students and Exchange Visitors are coming

By Miroslava Orduño Rincón
May 17, 2018

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On May 11, 2018 the USCIS released a policy memorandum delineating forthcoming changes on how unlawful presence will be calculated for individuals holding principal or dependent F, J and M non-immigrant status. The USCIS is presently accepting public comments on this memorandum through June 11 and information on how to make those comments can be found in the link above.

Currently, foreign students and exchange visitors admitted for duration of status (D/S) start accruing unlawful presence only upon a formal finding of nonimmigrant status violation by the USCIS or on the day after an immigration judge orders the applicant excluded, deported, or removed, whichever comes first. Any individual admitted until a specific date commences to accrue unlawful presence on the day after their I-94 card expired or at the time the USCIS or an immigration judge excluded, deported, or removed the individual.

Effective August 9, 2018, F, J, or M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence if such a finding had not been previously made through any of the following:

  • A formal Department of Homeland Security "finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit"
  • An expired Form I-94 record if the "F, J, or M nonimmigrant was admitted for a date certain"
  • "An immigration judge or, in certain cases, the Board of Immigration Appeals (BIA), ordered the alien excluded, deported, or removed (whether or not the decision is appealed)."

Beginning August 9, 2018 an F, J or M nonimmigrant will begin to accrue unlawful presence on the earliest of the following:

  • The day after the F, J or M nonimmigrant ceases to pursue the course of study or authorized activity, or the day after engaging in an unauthorized activity.
  • The day after a course of study or program plus its authorized practical training and allowable grace period is completed.
  • The day after form I-94 card expires, if admitted through a specific date.
  • The day after an immigration judge or the BIA orders the individual excluded, deported, or removed (whether or not the decision is appealed)."

An individual unlawfully present in the United States for more than 180 days but less than one (1) year, who departs the United States voluntarily prior to the initiation of removal proceedings is deemed inadmissible to the United States for three (3) years whereas those unlawfully present for one (1) year or more are deemed inadmissible for ten (10) years from the date of departure or removal from the United States unless eligible for a waiver of inadmissibility or other relief. Accrual of unlawful presence could also pose difficulties for adjustment of status within the United States unless the individual falls under one of the allowable exceptions to the adjustment bars.

Therefore, anyone in the United States in violation of their status needs to take a look at their individual situation and determine what if anything can be done to begin accruing unlawful presence come August 9th. It goes without saying that  F, J and M non-immigrants should abide by all other terms of their status to avoid the immediate termination of their status. More than ever, it is imperative these individual carefully monitor the end of any grace periods and make the necessary arrangements to timely depart or change status.

Miroslava Orduño Rincón’s practice focuses on immigration and nationality law and leads the firm's Immigration and Nationality Law practice group.

Miroslava has extensive experience with U.S. non-immigrant and immigrant petitions for large international corporate clients in the Automotive OEM and Aerospace industries. She additionally processes outbound visitor and work visas, family-based petitions, and naturalization.

Prior to attending law school, and while pursuing her legal studies, Miroslava served for 11 years as an immigration paralegal. She is a native Spanish speaker, and has extensive facility in the French language. 

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