USCIS Changes Policy on Unlawful Presence Trigger for F, J and M Nonimmigrants

Update (May 3, 2019):  The Policy Memorandum has been blocked by a preliminary injunction.

In a Policy Memorandum dated May 10, 2018 and effective as of August 9, 2018, U.S. Citizenship and Immigration Service (USCIS) is changing the way it treats non-immigrants who are in the U.S. on F, J and M status and, specifically, when such non-immigrants either complete/stop their program or violate the terms of their status.  Previously, F/J/M non-immigrants had to be formally deemed to have violated status to be considered unlawfully present. Under the new policy, completion of the F/J/M program or violation of the terms of status start the period of unlawful presence which can then lead to a ban on entering the U.S.

The New Policy

The new policy becomes effective on August 9, 2018 and specifically clarifies that F, J and M non-immigrants (including dependents), admitted or otherwise authorized to be present in the U.S. in duration of status (D/S) or admitted until a specific date (noted on passport entry stamp and/or I-94 card), start accruing unlawful presence, due to failure to maintain status on or after August 9, 2018, on the earliest of any of the following:

• The day after the F, J, or M non-immigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2)
• The day after the Form I-94 expires, if the F, J, or M non-immigrant was admitted for a date certain; or
• The day after an immigration judge or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Unlawful Presence Start Date

It is very important for F, J and M non-immigrants to understand and remember that the unlawful presence period can start and begin accruing without much notice or warning.   The way the triggers are drafted in the Policy Memorandum, there is possibility that an F/J/M non-immigrant may take an action which may inadvertently cause status violation and trigger the unlawful presence.   For example, the first of the factors states that unlawful presence would start on,

[t]he day after the F, J, or M non-immigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.  (emphasis added)

Unauthorized activity is a very broad term and may cover a variety of situations.   For example, an F-1 student may decide to engage in what appears to be a volunteering or perhaps a school-related activity which may involve performing work-related tasks or perhaps involve certain type of compensation or reimbursement.   If what may be an innocent activity is later considered to be an “unauthorized activity”, then the F-1 student’s unlawful presence would have begun on the day after the activity and such unlawful  presence (if more than 180 days, see below) would trigger an automatic ban on entering the U.S.

Who Determines if A Non-immigrant Has Failed to Maintain Status?

The Policy Memorandum, in a footnote, states that a DHS officer will make a determination as to whether an F/J/M non-immigrant has failed to maintain status such as in, for example, what may be an innocent or inadvertent situation as described in the previous paragraph:

The day the alien failed to maintain his or her status may be determined by a DHS officer. In accordance with 8 CFR 103.2(b)(16), if an adverse decision will result from a DHS officer’s inadmissibility determination under INA 212(a)(9)(B) or INA 212(a)(9)(C)(i)(I) and that determination is based on derogatory information of which the alien is unaware, the officer, shall give the alien an opportunity to rebut that derogatory information.

While it is good to know that an F/J/M non-immigrant may have an opportunity to rebut any allegation by USCIS that they have violated their status in the past and have been unlawfully present since that past date, the stakes for such non-immigrant cannot be greater.   If such status violation is alleged to have been more than 180 days in the past (making the non-immigrant subject to at least a 3-year ban on entering the U.S. in the future – see below under Consequences of Unlawful Presence),  then the non-immigrant will face extremely high stakes in trying to rebut such allegation which may be based on facts or events which have occurred months or years in the past.

At this time it is not clear what role, if any, would F-1 Designated School Officials (DSOs) have in determining failure to maintain status and in the process of rebutting such allegations.

Effective Date of the New Policy and Prior Status Violation

The new policy would become effective on August 9, 2018.     In the meantime,  if any of the factors which trigger unlawful presence under the new policy were met then a non-immigrant’s unlawful presence period would start from August 9, 2018.

Consequences of Unlawful Presence

Being unlawfully present in the U.S. can trigger 3- or 10-year bans on entering the U.S. in the future.    Section 212(a)(9)(B) of the Immigration and Nationality Act (INA) contains the relevant provisions:

(B) ALIENS UNLAWFULLY PRESENT.-

(i) […] Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States is inadmissible.

(ii) Construction of unlawful presence.-For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(emphasis added)

Essentially, unlawful presence of more than 180 days but less than 365 days triggers a three-year ban on entering the U.S. while unlawful presence of  one year or more triggers a ten-year ban.      There are some (but very limited) options to seek waivers to such bans.

Differences Between Failure to Maintain Status and Unlawful Presence for Non-F/J/M Holders

Even though the new policy is aimed at F/J/M non-immigrants, it is likely to cause some level of alarm among other status holders.    This is where we would like to make an important distinction between failure to maintain status and unlawful presence for other status holders.

The unlawful presence policy for non-immigrants who are admitted until “date certain” (have I-94 with expiration date – such as H-1B, H-4, L-1, TN, and many  others) remains unchanged and it essentially states that unlawful presence starts upon expiration of the I-94 card or DHS decision.

For instance, an H-1B worker who holds a valid H-1B approval notice with a specific expiration date is generally going to be unlawfully present only after the H-1B I-94 expiration date or if DHS makes a finding of status violation. Please see our 2009 article on this topic which was based on the 2009 Donald Neufeld memorandum.   While this memorandum has been superseded by the new May 10, 2018 Policy Memorandum with respect to F/J/M non-immigrants, it remains unchanged with respect to other status holders and provides a good explanation of for other status holders and unlawful presence.

Practical Tips for F/J/M Non-immigrants

The life of an F/J/M non-immigrant can be complex with many situations which may or may not be clear as to whether they are violation of status or a permitted activity.     Obviously, given the new dramatically higher stakes of a determination of unlawful presence, we caution F/J/M non-immigrants to consider carefully whether a specific activity is permitted or not.    Program officers (DSOs) should be a great resource as to what activity is permitted.

The Policy Memorandum specifically outlines the circumstances which do not cause accrual of unlawful presence, including grace periods (before and after F-1 program), CPT/OPT, cap-gap, reinstatement of status, and many others.    Please refer to the Policy Memorandum document pages 10-12 for a more detailed list.

Conclusion

Our office will continue to monitor developments relating to how this new policy will be implemented and enforced by USCIS.    We caution, however, F/J/M non-immigrants to be very vigilant with respect to maintaining valid status and not engaging in what may be considered to be “unauthorized activity”.    We particularly hope that DSOs will play a much more active role in helping F-1 students and their dependents understand what they can and cannot do in order to maintain status.

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