On May 10, 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy memorandum that drastically changes the way it calculates unlawful presence for F, J and M visa-holding students. The new rules officially begin August 9, 2018.
“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.”
-L. Francis Cissna, USCIS Director, regarding the new F, J and M policy memo.
If an individual overstays or violates the terms of his or her visa for six months to one year, he or she is barred from re-entering the United States for three years. If an individual overstays or violates the terms of his or her visa for one year or more, he or she is barred from re-entering the United States for ten years. For example, if a person’s I-94 has an end date of January 1, 2017, he or she must leave by this date. If the person stays in the United States until July 1, 2017, he or she is BARRED from entering the United States again (or obtaining a new status) until 2020. If the person stays in the United States until January 2, 2018, he or she is BARRED from entering the United States until 2028. Not only is the individual barred from re-entering the United States, but is also considered ‘inadmissible’ – and thus barred from changing or receiving a new visa during these times. This includes adjusting status to obtain a green card. While there is a waiver available, not everyone qualifies.
For most students, they are admitted to the United States for a period of ‘duration of status’ (also known as d/s). Duration of status means students have no exit date – they can remain in the United States so long as it takes to complete their studies. Under the old rules, even if a student’s visa was cancelled or revoked, they did not begin to accrue unlawful presence until either (a) the day USCIS makes a formal determination while adjudicating another benefit, or (b) a judge orders the student removed (deported). The same rule applied to students who violated the terms of their visas, such as those who failed to attend classes, unlawfully worked, were expelled from university or refused to leave the United States after completing classes.
The reason students in d/s are treated differently is because after either (a) or (b), they are officially put on notice of their unlawfulness, and can knowingly begin to make changes to rectify their situations.
For example, if a senior student worked beyond the limited twenty (20) hour work week during sophmore year, he or she violated the student status, but does not begin to accrue unlawful presence until USCIS sends a letter detailing the violation. This has been the rule for over twenty-one years.
Beginning August 9, 2018, students with an F, J or M visa begin to accrue unlawful presence on following, whichever is earliest:
This policy affects not only students, but their dependents (spouses and children) who are in dependent “2” status. More importantly, it has retroactive effect, meaning a student who accidentally violated the terms of his or her student visa one year ago will be barred from re-entering the United States or obtaining a new visa for a decade.
For example, starting in August 2018, a senior student who is waiting for H1-B approval and who accidentally worked twenty-one (21) hours during the school year in sophomore year, one hour beyond the twenty (20) hour limit, now has TWO years of unlawful presence. This student cannot obtain an H1-B work visa and will be barred from re-entering the United States for TEN years.
The policy will likely be challenged in court. However, that doesn’t help students who accidentally violate their student visas unknowingly. Hundreds of thousands of students rely heavily on their Designated School Official (DSO) when deciding to engage in school-related activities (internship, off-campus employment, leaves of absence, etc.). If a DSO gives incorrect advice, the long-term consequences are now severe. It is important that individuals who have violated their status or think they may have violated their status to contact an immigration attorney as soon as possible. If you or a loved one will be affected by these changes, please contact me to review your situation.