On May 10, 2018, USCIS issued a policy memorandum regarding unlawful presence for foreign students. Accrual of Unlawful Presence and F, J, and M Nonimmigrants, PM-602-1060 (May 10, 2018). The memo offers new guidance for calculating the amount of unlawful presence for foreign students and their dependents. Unlawful presence can render a foreign national inadmissible and, if enough unlawful presence has accrued, can bar a foreign national from returning to the United States for three or even ten years.
Previously, foreign students admitted in “duration of status” or D/S, started accruing unlawful presence on the day after USCIS formally found a status violation while adjudicating a request for another immigration benefit or on the day after an Immigration Judge ordered the student removed (whether or not the decision is appealed), whichever came first. Foreign students admitted until a certain date started accruing unlawful presence on the day after their I-94 expired, USCIS formally found a status violation, or a judge issued an order of removal. This policy has been in effect since the late 1990’s, but the Department of Homeland Security has recently become more adept at identifying foreign students who fail to maintain status, particularly those in the F, J, and M nonimmigrant visa categories.
According to the policy memo, the Student and Exchange Visitor Information System (SEVIS), used to monitor foreign students, indicates that the total overstay rate for F visa holders is about 6.19%. J visa holders have overstay rates of 3.80% and the M nonimmigrant classification has an overstay rate of 11.60%. In an attempt to reduce the percentage of student visa overstays, USCIS has updated their policy guidance on how to calculate unlawful presence for F-1, J-1, and M-1 visa holders and their dependents. This new policy will take affect August 9, 2018 and will be applicable to foreign students admitted in D/S or until a date certain. For these individuals, unlawful presence starts accruing when any of the following actions take place:
- F, J, or M nonimmigrants who failed to maintain their status before August 9, 2018 will begin accruing unlawful presence starting August 9, 2018.
- This does not delay the accrual of unlawful presence for those students who already have a formal finding of a status violation by USCIS, an order of removal by a judge, or have overstayed a date-certain I-94.
- F, J, or M nonimmigrants who failed to maintain their status on or after August 9, 2018, to include:
- The day after the student no longer pursues the course of study or authorized activity/work;
- The day after the student engages in an unauthorized activity/work;
- The day after completing the course of study (including any OPT options and the grace period);
- The day after the I-94 expires, if admitted until a date certain; and
- The day after the student is ordered excluded, deported, or removed (whether or not the decision is appealed).
In assessing whether a foreign student accrued unlawful presence, the USCIS officer will consider all of the information contained in available DHS systems and databases, including SEVIS, as well as any other information contained in the student’s alien record.
Ryan Morgan Knight is an associate attorney with Haynes Novick Immigration in Washington, DC, focusing his practice on a broad spectrum of employment-based nonimmigrant and immigrant visas.