F, J, M Students and Unlawful Presence

If you are an F, J and M foreign student studying in the U.S., please pay close attention!

USCIS has implemented a new policy regarding how a F, J, or M foreign student may accrue unlawful presence in the U.S. Specifically, the changes are to how unlawful presence is calculated and its related consequences. Unlawful presence (ULP) has special significance under the law as accrual of ULP may bar a person from reentering the US for long periods of time.  Simply put, ULP happens when a foreigner has failed to maintain her legal nonimmigrant status and is not otherwise authorized to stay in the U.S. The changes will take place on August 9th, 2018. The USCIS policy memo announcing this also includes specific rules for before August 9th.

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Before August 9th, F, J, and M status individuals violating certain conditions will have already begun their unlawful presence. One condition is having their I-94 expire. Another condition is having an immigration judge or the Board of Immigration Appeals exclude, deport, or remove them. The last condition is if DHS denies the individual's request for any immigration benefit upon finding that they violated conditions on their status. The day after any of these conditions are met is when the individual's unlawful presence begins.

After August 9th two more conditions will trigger the start of unlawful presence. One is when the program or study that allowed the individual to lawfully reside in the States ends. Such conditions include OPT and grace periods. The second condition is when the person stops the study or program or is no longer eligible to continue because of unauthorized activity. Again, the day after any of these happen is when unlawful presence begins.

What if one accrues unlawful presence? The most notable consequences are the infamous three-year (for ULP of 180 days or longer) and ten-year bar (for ULP of 365 days or longer) of inadmissibility after the violator's departure from the U.S. It means they will not be allowed to apply for a U.S. visa, admission, or adjustment of status if the bars are triggered. The only way around this is to qualify for relief, typically in the form of a waiver. Dependents are also similarly affected by the new policy.  Additionally, dependents may also fall out of status on account of their own violations.

Prior to these changes, immigration has applied the "duration of status" (D/S) standard for many years. D/S is marked on student I-94 and I-20s. It means that students are allowed to keep their nonimmigrant status for so long as they continue to pursue their studies and comply with all visa conditions in the U.S.  Only after an immigration officer makes an explicit finding of status violation will the student's nonimmigrant status end.  Under the new policy, specific findings of status violation will no longer be required. One thing is unclear: what happens if the study program ends for reasons unrelated to the student.  Would she still accrue ULP?