F, J, and M Statuses: Accruing Unlawful Presence

By: Attorney Nadia Khalid 

USCIS New Policy on Accruing Unlawful Presence for Non immigrant Students and Exchange Visitors

May 25, 2018

What happens when your status as a student or exchange visitor ends?

As of May 2018, U.S. Citizenship and Immigration Services released a new policy memorandum that will change how USCIS calculates unlawful presence for students or exchange visitors.

As a reminder, a student or exchange visitor is anyone on F, J, or M nonimmigrant status. This included F-2, J-2, or M-2 dependents.

The new policy divides unlawful presence into two categories:

  1. Before August 9, 2018;
  2. After August 9, 2018.

Before August 9, 2018:

            If you held F, J, and M status and fell out of status before August 9, 2018, you will begin accruing unlawful presence on August 9, 2018. However, if any of the following things happened or happen before August 9, 2018, then you will begin accruing unlawful presence on:

  • 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 your 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).

After August 9, 2018:

If you held F, J, and M status and fell out of status on or after August 9, 2018, you will begin accruing unlawful presence on:

  • 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 your 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).

What Happens if I Overstay?

An obvious question is what happens if you overstay your F, J, or M status. The purpose of this new USCIS policy is to ensure students and exchange visitors do not over stay their periods of admission without receiving a new, current lawful immigration status.

  • If you overstay more than 180 days: The new policy also states that if you accrue more than 180 days of unlawful presence during a single stay may be subject to three year or ten year bars to admission, depending on how much unlawful presence they accrued before they departed the United Sates.
  • If you overstay more than one year: If you accrue more than one year of unlawful presence, whether in one single over stay, or as the total of multiple over stays, you may be permanently inadmissible unless you receive permission to re-enter or are paroled.
  • If you receive a bar to admission: you are not eligible to apply for a visa, admission, or adjustment of status to permanent residence.

For more information, see the full text of the new USCIS policy at:  

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO_v2.pdf

Given the unpredictable pace of these new policy directives, it is important to find strong legal support to help you navigate this important process and understand new polices as they come out. Please contact the Powers Law Group for a phone or in-person consultation if any of the above information applies to you.

Contact us by phone at (713) 589-2085 (TX) or (201)-210-8240 (NJ) or by email at contact@rubypowerslaw.com for further questions or advice.

 

 

 

 

Posted on by Carlos Gutierrez in Immigration Law

Add a Comment

Facebook

YouTube

LinkedId