Big Changes to How Immigration (USCIS) Calculates Unlawful Presence for F, J and M Nonimmigrants

Background: The Current (soon to be old) Rule Surrounding Unlawful Presence for F, J and M Nonimmigrants

F, J and M nonimmigrant status is used for students, professors, exchange visitors and other short-term categories. Because many of these programs have indeterminate end dates, or dates that can be extended directly by a school (rather than through USCIS), individuals in these categories are generally not given fixed end dates for their stay in the U.S. Their I-94 cards grant them status in the U.S. for “duration of status”, stated on their I-94 card as “D/S”. [NOTE: some F, J and M nonimmigrants are given a fixed end date for their stay, rather than D/S]. Individuals without fixed end dates on their I-94 cards do not accumulate “unlawful presence” in the U.S. as easily as individuals in other nonimmigrant categories.

Harsh Consequences for Unlawful Presence

Once a person is unlawfully present in the U.S. for more than 6 months, harsh penalties attach. With more than 180 days of unlawful presence, a foreign national who leaves the U.S. is barred from returning to the U.S. for three years, absent a waiver. If the individual accumulates more than one year of unlawful presence, the penalty becomes 10 years, absent a waiver.

Instead of being “unlawfully present” if they violate the terms of their stay or stay beyond the end date of their program, F, J and M foreign nationals with “D/S” on their I-94s were deemed to be “out of status”, but not unlawfully present.

They would only begin to accumulate unlawful status upon the earliest of one of the following events:

1. 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;

2. The day after their I-94 expired (if they were given a fixed end date); or

3. 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).

Therefore, absent a formal determination by DHS in the form of a denied benefit application (such as a request to change status or extend status), or a determination by a judge or the Board of Immigration Appeals (appellate judges that examine cases after an initial review by an immigration judge), a person would not accrue unlawful presence if they had “D/S” on their I-94 card.

However, they could still be deemed to be “out of status”, which also has harsh consequences (such as preventing a change of status to another category), but not as harsh consequences as being “unlawfully present”.

With a new memorandum released by USCIS, this more favorable treatment of F, J and M foreign nationals is coming to an end.

The New Rule: F, J and M Foreign Nationals Can Accumulate Unlawful Presence Much More Easily

Based on a new policy memorandum released by USCIS on May 10, 2018, this different treatment of F, J and M foreign nationals will come to an end on August 9, 2018. From that date forward, F, J and M foreign nationals will begin to accumulate unlawful presence on the earliest of the following three conditions:

1. 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;

2. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

3. The day after the I-94 expires; or

4. 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).

Therefore, as soon as a foreign national is out of status, they will also be deemed to be unlawfully present, ending the old rules surrounding the “duration of status” or “D/S” designation.

Here is a link to the USCIS announcement on this new rule, which contains a link to the full memorandum. If you have F, J or M status and are concerned how this new rule might affect you, give us a call at (303) 872-6985.