August 14, 2018

USCIS Finalizes Policy Memorandum on Unlawful Presence and F, J, and M Nonimmigrants

In May of this year, we alerted our clients to USCIS’s proposed policy memorandum on the accrual of unlawful presence for F, J, and M students and exchange visitors. After a notice and comment period, USCIS has finalized that policy, and on August 9, 2018 they released PM-602-1060.1. This policy supersedes the May 2018 draft, and any other previous guidance on the subject. It went into effect the same day.

The finalized policy confirms that USCIS will now calculate a F, J, or M nonimmigrant to have begun accruing unlawful presence 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).

This policy is a departure from previous USCIS policy. Prior policy held that any nonimmigrant in those three categories who had been admitted for “duration of status” with a “D/S” symbol on their arrival record would not accrue unlawful presence unless and until USCIS or an Immigration Judge found them to be out of status. Nonimmigrants in F, M and J status must now be more vigilant than ever to ensure that an innocent or unintended act does not trigger the accrual of unlawful presence. After accruing more than 180 days of unlawful presence, a departure from the U.S. will trigger a three-year bar to re-entry. An accrual of more than one year of unlawful presence and departure from the U.S. triggers a ten-year bar to re-entry.

The main difference between the previously proposed policy memo and finalized policy PM-602-1060.1 has to do with a timely filed application for “reinstatement.” Under the finalized policy, if an F, J, or M nonimmigrant falls out of status, but applies for reinstatement before five months have elapsed, then unlawful presence will be tolled while that application for reinstatement is pending.

We encourage our clients to take a conservative approach to any activities that may be deemed to trigger the accrual of unlawful presence under this new policy. Please contact our office if you have any questions about how this policy may affect you or your employees.

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