Effective earlier this month on August 9th, 2018, the USCIS implemented its new policy memo which drastically alters its method of calculating whether F, J, or M nonimmigrant visa holders are in a period of “unlawful presence.”
According to the policy memo released by the USCIS, nonimmigrant visa holders on F, J, or M status will begin to accrue “unlawful presence” in the United States the day after they are deemed to have violated the terms of their status. This new calculation method will have widespread effects that can result from administrative errors committed on behalf of school staff, to work demands that might slightly deviate from the agreed upon terms of a visa holder’s status. For example, if an F-1 student visa holder who has been granted work authorization with a maximum of 15 hours per week, works a total of 18 hours in one week in order to meet a deadline, then that student began their unlawful presence the moment they worked more than 15 hours in one week.
This has the potential to lead towards F, J, or M nonimmigrants being barred from re-entry into the United States for 3 or 10 years. If the nonimmigrant visa holder has accrued a total of 180 days of “unlawful presence,” then they are subject to a 3-year ban from the United States. If the nonimmigrant has accrued a total of 365 days of “unlawful presence,” then they are subject to a 10-year ban from re-entering the United States.
As such, it is important to note that F, J, and M nonimmigrants, unlike other nonimmigrants, are not usually admitted to the United States with a specific end date, wherein they begin to accrue “unlawful presence” once they stay past that date. Rather, F, J, and M nonimmigrants are admitted based on what is known as “duration of status.” This means that an F, J, or M nonimmigrant are lawfully present in the United States through the “duration” of their underlying scholarly, educational, or training programs, which may change after their arrival. As such, an F, J, or M nonimmigrants visa expiration date does not determine their permitted length of stay in the United States.
Take for example the following two cases: 1) a J-1 trainee engages in a responsibility which is necessary to complete their work, but this responsibility was not listed on their training plan agreed upon by the USCIS, or 2) an F-1 student was advised via a clerical error that their status has been extended. Both the J-1 trainee and the F-1 student continue to reside in the U.S. on account that they are unaware that they have violated the terms of their status. Previously, an F, J, or M nonimmigrant in these situations, or similar ones, would only begin to accrue unlawful presence the day after an immigration officer or judge deemed them to be out of status. That is, both the J-1 trainee and the F-1 student previously mentioned would not be deemed to have accrued “unlawful presence” until an officer or judge ruled that they had violated the terms of their status. However, with the new policy guidelines, the J-1 trainee and the F-1 student begin to accrue unlawful presence the moment the status has been violated, regardless of the necessity or error at hand, and whether they were conscious of this violation.
As a result of this new policy memo, we urge F, J, and M nonimmigrants (and their sponsors) to ensure that their immigration matters are in order, and that the terms of their agreed upon status are carefully met. As this new method of calculating accrual of “unlawful presence” could place an F, J, or M nonimmigrants future immigration plans in peril, it is of utmost importance to ensure that their immigration status has not been violated. As such, we strongly recommend that if you are in F, J, or M nonimmigrant status, that you seek legal counsel to review the specific details of your case. You can contact The Margolis Law Firm at (212) 490-0900 to schedule a consultation.
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