Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a revised final Policy Memorandum related to unlawful presence after considering feedback received during a 30-day public comment period that ended June 11, 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 non-national (“alien”) had already started accruing unlawful presence.
An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:
- 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);
- The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
- The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).
Please do note, F-1 students are eligible for Practical Training (OPT/CPT/STEM OPT) under F-1 visa status if the eligibility criteria for practical training is met. F, J, M students also have 60 days and 30 days grace period, respectively, after completion of study program or after the completion of Practical Training in case of F-1.
Under the revised final policy memorandum, effective Aug. 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.
On May 10, 2018, USCIS had posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised final memorandum published today supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.
Foreign students who are no longer properly enrolled in school are violating the terms of their student visa would incur unlawful presence ground of inadmissibility. For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.
If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act. Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.
The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.
An F-2, J-2, or M-2 nonimmigrant’s period of stay authorized ends when the F-1, J-1, or M-1 nonimmigrant’s period of stay authorized ends. In addition, an F-2, J-2, or M-2 nonimmigrant’s period of stay authorized may end due to the F-2, J2, or M-2 nonimmigrant dependent’s own conduct or circumstances.
In addition, the revised final policy memorandum references to the Board of Immigration Appeals (BIA) issuing orders of removal in the first instance.
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.
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