U.S. Citizenship and Immigration Services (“USCIS”) has issued a new Policy Memorandum that alters when the period of unlawful presence begins to be counted for those holding F-1 and J-1 nonimmigrant visas.
Unlawful Presence is significant in that departure after a certain period of it triggers bars to reentry into the US under the 1996 Immigration Reform and Immigrant Responsibility Act (IRAIRA). If an individual builds up (“accrues”) 180 days of unlawful presence and then leave the US, they are subject to a three-year bar to returning to the US. If they build up a year of unlawful presence and then leave, they are subject to a ten-year bar to returning.
Previously, those on F-1 and J-1 who stayed past the end of their programs or violated the terms of their programs (by working without authorization, for example) enjoyed an advantage over those on other nonimmigrant visas doing the same things. While other nonimmigrant visa holders are admitted until a finite end date, those on J-1 and F-1 have always been admitted for “Duration of Status” – essentially this references the program documents, I-20 form for F-1s and DS-2019 form for J-1s to determine the program date.
However, in the past unlawful presence did not automatically begin to accrue when the relevant form said the program ended or upon violation of status – an immigration officer or judge needed to formally make that determination before unlawful presence time would begin to build up for F-1s and J-1s as opposed to immediately automatically on the day after the expiration date, as with other nonimmigrant visa holders.
The policy memo, effective August 9th, 2018, changes that – now, not only will unlawful presence for purposes of triggering the reentry bars immediately begin to build up when the expiration date on the relevant program form is reached, but immediately upon violation of status if this occurs earlier. If the overstay from date of program completion or violation of terms of status has already happened before the August 9 effective date, unlawful presence will be counted from August 9. If there has been a determination that an F-1 or J-1 is out of status by an immigration officer or judge, the count still begins on the date of that determination.
We do expect this change, being implemented by policy memorandum rather than an actual regulation, to be challenged in the courts under the Administrative Procedures Act – but we do expect the administration to begin enforcing this as of early August.