USCIS has announced that it plans to change how they calculate unlawful presence for J-1, F-1, and M-1 visa holders who are admitted to the U.S. under “D/S.” The changes are designed to reduce the number of nonimmigrants who overstay their periods of admission and to clarify how USCIS is to implement the unlawful presence grounds of inadmissibility.
U.S. Citizenship and Immigration Services (USCIS) has posted a policy memorandum for public comment, changing how the agency calculates unlawful presence for F-1, J-1, and M-1 nonimmigrants and their dependents (F-2, J-2, and M-2 nonimmigrants). The Public Engagement Division of the USCIS notes that DHS has also made significant progress in its ability to track the activities of F, J, and M nonimmigrants.
The memorandum proposes that individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:
- The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after their I-94 expired; or
- The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).
Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
- The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
- The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
- The day after the I-94 expires; or
- The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).
USCIS encourages F, J, and M nonimmigrants to check the policy memorandum that updates Chapter 40.9.2 of the Adjudicator’s Field Manual for more information on this change and to talk to their Designated School Official (DSO) if they have any questions. In addition, the Study in the States website has government resources that explain the rules and regulations governing the international student process in the United States.
The 30-day public comment period has already begun, and it closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page. The guidance will go into effect on August 9, 2018.
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