USCIS Changes Unlawful Presence Rules for F, J, and M Students

USCIS issued a new policy effective August 9, 2018 which will radically change the way that violations by F, J, or M students or exchange visitors lead to a three-year, ten-year, or permanent reentry bar. Under the revised rules, students and exchange visitors will face a stricter interpretation of “unlawful presence.”

Notably, a foreign national can violate his or her status without accruing unlawful presence. For example, an H-1B holder would violate his status if he worked for an employer who did not sponsor his H-1B visa, but his presence in the United States would not be unlawful during that period. Similarly, under current rules, an F-1 student who takes fewer than the required number of courses has violated his status, but he has not accrued unlawful presence. In contrast, under the proposed rules, an F-1 student in the same circumstance would immediately start accruing unlawful presence.

  • CURRENT RULE: Under the policy in place for the last 20 years, most students and exchange visitors in F, J, or M status only start accruing unlawful presence after an immigration judge has ordered the student to be deported/excluded, or where USCIS has denied an application or found a violation.
  • PROPOSED RULE: From August 9, 2018, those who fail to maintain their F, J or M status (and their dependents) will automatically accrue unlawful presence upon the occurrence of certain triggering events, such as the failure to complete an authorized course of study or engaging in unauthorized activity (like employment).

The proposed change would not alter existing rules on the consequences of accruing unlawful presence. Any foreign national who accrues more than 180 days of unlawful presence may be subject to a three-year bar from entering the US, and accruing more than 365 days will subject a foreign national to a ten-year or even permanent bar. These foreign nationals are generally not eligible to apply for a visa, seek admission to the US, or adjust to permanent resident status unless they receive a waiver of inadmissibility.

The new policy memorandum will be open for public comment through June 11.