USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors

[Free Man 119]

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandumchanging how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.  

This policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

“USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status,” said USCIS Director L. Francis Cissna. “The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”

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 or not 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 or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

This policy memorandum is updating Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.

USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), and Facebook (/uscis). 

- USCIS –

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[Boiler 45,417]

that seems much more logical.

[Cyberfx1024 7,980]

MAGA all day

[SusieQQQ 11,586]

For non experts in this, how does it compare to existing policy?

[Coco8 1,042]

20 hours ago, SusieQQQ said:

For non experts in this, how does it compare to existing policy?

Before, people were saying that because i-94 said DS you did not start accruing days. Now, you can start accruing unlawful presence once your period of study + grace period is over. 

[SusieQQQ 11,586]

3 hours ago, Coco8 said:

Before, people were saying that because i-94 said DS you did not start accruing days. Now, you can start accruing unlawful presence once your period of study + grace period is over. 

Ah

then this does make a lot more sense.

 thanks for the clarification!

[misspanlo 0]

Does anybody know how this change in policy on accrued unlawful presence might effect EB5 investor who is having an i 485 pending case?I am currently on an F1 visa, but I have a pending i 485 filled since March, 2018 and have received my EAD card and advance parole. Can I abandoned my F1 status and stay in the US legally?

[SusieQQQ 11,586]

3 minutes ago, misspanlo said:

Does anybody know how this change in policy on accrued unlawful presence might effect EB5 investor who is having an i 485 pending case?I am currently on an F1 visa, but I have a pending i 485 filled since March, 2018 and have received my EAD card and advance parole. Can I abandoned my F1 status and stay in the US legally?

How can you be eb5 and F1 at the same time? Isn’t I526 the form used by EB5 to adjust rather than i485?

btw there are some changes to what EB5 investors are allowed to use, you may want to look into those, not sure if it applies to people who have already filed for AOS.

[misspanlo 0]

1 hour ago, SusieQQQ said:

How can you be eb5 and F1 at the same time? Isn’t I526 the form used by EB5 to adjust rather than i485?

btw there are some changes to what EB5 investors are allowed to use, you may want to look into those, not sure if it applies to people who have already filed for AOS.

I was an F1 even before I started eb5 and filed my i526 and just continue my studying even after my i526 was approved. Getting I526 approved only means that you have established for classification as an eb5 investor and therefore you are eligible to receive a conditional green card, but you have to use form i485 (which is the next step after you got your i526 approved) to adjust your status from non-immigrant status (like f1) to permanent resident.