By: Roujin Mozaffarimehr
The USCIS has changed its policy on accrued unlawful presence by nonimmigrant students and exchange visitors in F, J and M status (including dependents). On May 11, 2018, The USCIS issued a policy memorandum that will take effect on August 9, 2018, outlining the following changes in its ULP policies as they relate to F, J and M status holders:
Individuals in F, J, and M status who failed to maintain their status before Aug. 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 an 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 the decision is appealed).
Individuals in F, J, or M status who fail to maintain their status on or after Aug. 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 the decision is appealed).
This is a stark change from the Service’s previous policy on ULP, which was governed by Adjudicator’s Field Manual (AFM) 40.9.2 and has been effect since the legacy INS in 1997. Previously, persons in F, J and M status only started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation. This includes during the adjudication for an immigration benefit, or after an immigration judge ordered the status holder removed, deported, or excluded. This new policy memorandum supersedes the AFM guidance; the AFM section at 40.9.2 will be updated to reflect the new policy.
USCIS Director L. Francis Cissna announced that this policy aligns with President Trump’s Executive order: Enhancing Public Safety in the Interior of the United States and furthers the Services “mission of ensuring the integrity of the immigration system.”
In a change in comment policy, USCIS will only accept comments e-mailed to email@example.com. Previously, the agency provided a dedicated web page for comments on each policy change, allowing the public to view comments.
The USCIS is currently accepting comments from the public on the policy memorandum through June 11, 2018. For information on the comment process please visit the Policy Memoranda for Comment page here.