Publication

31 May 2018

USCIS Changes Policy on Accruing Unlawful Presence for Students and Exchange Visitors

The United States Citizenship and Immigration Service (USCIS) issued a new policy memorandum drastically changing decades of past practice regarding when unlawful presence is accrued for F, M, and J visa holders. These visa types are commonly used to study or teach at United States colleges and universities, attend vocational schools, participate in medical residency and physician fellowship training programs, or to engage in medical research activities.

Under decades long established policy and practice, unlawful presence and bars to future immigration benefits would only accrue when an individual stayed in the United States beyond the specific authorized stay date granted upon entry. However, F and M visa class students and J visa exchange visitors are not given a specific “end date” for the authorized stay when they enter the United States. Instead, they are admitted for the Duration of Status (D/S), i.e., the length of their program of study or the activity underlying the grant of the visa. Established policy had recognized students, exchange visitors, and the institutions overseeing their programs may require flexibility with an end date of the U.S. stay. The training program or educational institution had been responsible to assure continued participation by the visa holder to maintain immigration status. Students and exchange visitors would not begin to accrue unlawful presence until the USCIS issued a formal notice of a status violation, or an order of removal, deportation, or exclusion.

Under the new policy, as of August 9, 2018, F, M, and J visa holders will begin accruing unlawful presence on the earliest of:

  1. The day they are no longer pursuing the authorized activity;
  2. The day they engage in unauthorized activity;
  3. The day after completing their course of study or program;
  4. The day after the Form I-94 authorized stay date expires; or
  5. The day after they are ordered excluded, deported, or removed.

This unexpected and major policy change is predicted to have a significant adverse impact on F, M, and J visa holders, as well as the educational institutions and medical research and training programs who have large numbers of foreign national participants. For example, foreign nationals in J visa status comprise more than 35% of the residents or fellows in many physician training programs. Under the new policy, a J visa physician would begin to accrue unlawful presence due to a minor technical status violation, e.g. changing training programs without prompt updates to immigration forms, without knowing and without any means of challenging or correcting the violation. For U.S. employers, who have seen F visa students and J visa physicians as valuable additions to the workforce, the ability to employ many foreign nationals will be delayed, and in some cases impossible. Long established U.S. law imposes a 3 year bar, deems a person “inadmissible,” once 180 days of unlawful presence has accrued; a 10 year bar to the U.S arises upon the accrual of one year or more of unlawful presence.

This new policy memorandum specifically references President Trump’s directive to tighten enforcement of existing immigration laws and create a stricter environment for foreign nationals coming to the United States.

The USCIS will accept public comments on the policy change through June 11, 2018 at https://www.uscis.gov/outreach/feedback-opportunities/policy-memoranda-comment.

If you have questions about the new unlawful presence guidance, please contact the authors or any member of our Immigration Practice Group.