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Accrual of Unlawful Presence and F, J, and M Nonimmigrants, foreign students and exchange visitors

Accrual of Unlawful Presence and F, J, and M Nonimmigrants, foreign students and exchange visitors

May 24, 2018

On May 11, 2018, USCIS proposed a fundamental change to the way it counts days of “unlawful presence” that could subject an F, M, or J nonimmigrant to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B), and would go into effect on August 9, 2018.

USCIS will accept public comments until June 11, 2018. NAFSA submitted a comment letter on May 24, 2018, and is in discussion with other associations about further comments.

A USCIS new release states 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 contains instructions for submitting comments, and recaps 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 current policy, which has been in place for 20 years, the unlawful presence count begins 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 newly proposed 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 if USCIS approves a student’s application for reinstatement)

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
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