USCIS Issues Revised Guidance on Unlawful Presence for F, J and M Nonimmigrants

At a glance

• USCIS has clarified that an F-1 or M-1 foreign student who files a timely request for reinstatement of their status after a violation will not accrue unlawful presence while the request is being adjudicated.
• A J-1 exchange visitor will not be deemed to have accrued unlawful presence if he or she files a timely request for reinstatement after a status violation and the request is approved.

The situation

As we have reported, USCIS has implemented a new policy under which F, J and M nonimmigrants and their dependents will automatically begin to accrue unlawful presence if they violate the terms of their nonimmigrant status. In a revision to the policy issued late Thursday, the agency has clarified several key points:

• An F-1 or M-1 student who files a timely request for reinstatement of status will not accrue unlawful presence while their request is being adjudicated. An application is considered timely if it is submitted within five months of the status violation. If the application is approved, the F or M nonimmigrant will resume lawful status. If it is denied, the F or M nonimmigrant will resume the accrual of unlawful presence.
• A J-1 nonimmigrant will not be considered to have accrued unlawful presence if he or she submits a request for reinstatement to the State Department and it is approved.

Unlawful presence under the new policy

As of August 9, 2018, USCIS will consider an F, J or M nonimmigrant who violates the terms of his or her status to be unlawfully present and will calculate unlawful presence from the day after the status violation occurs. For status violations that occurred before the effective date of the policy, USCIS will calculate unlawful presence from August 9, 2018.  Because of the significant consequences of unlawful presence, foreign students, exchange visitors and their employers must take all steps necessary to ensure compliance with F, J and M program rules. 

A foreign national who has been unlawfully present for more than 180 days or one year or more is subject to a three-year or ten-year bar on reentering the United States and will not be eligible to apply for a visa, admission or adjustment of status to permanent resident unless they are granted a waiver of inadmissibility or another form of relief.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.