On May 11, 2018, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum for Public Comment, with the comment period set to end on June 11, 2018.  The proposed change would affect those individuals and their dependents in the following statuses:  Student (F-1 Academic Student and F-2 Spouse or Child of F-1 nonimmigrant); Exchange Visitor (J-1 Exchange Visitor and J-2 Spouse or Child of J-1 nonimmigrant); and Vocational Student (M-1 Vocational Student or non-academic Student and M-2 Spouse or Child of M-1 nonimmigrant).  The new policy memorandum would change the way F, M, and J visa holders accrue unlawful presence.   A person is unlawfully present in the United States if he or she is present “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security or is present in the United States without being admitted or paroled” according to INA §212(a)(9)(B)(ii).  If one is unlawfully present for greater than 180 days, a three year bar is placed upon the individual to return to the United States.  If the person is unlawfully present for greater than one year, a 10 year bar is placed upon the individual to return to the United States.

The current policy memorandum dated May 6, 2009, entitled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212 (a)(9)(C)(i)(I) of the Act”, USCIS recognized that a Customs and Border Protection (CBP) stamp of Duration of Status (D/S) meant that those individuals with this admittance into the United States did not accrue unlawful presence until the day after USCIS formally found a nonimmigrant status violation or on the day after an Immigration Judge ordered exclusion, deportation or removal.  Those who were admitted until a specific date as shown on their Form I-94 Entry Record would start accruing unlawful presence on the day after this form expired.

USCIS now proposes that effective August 9, 2018, those F, J. or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status before August 9, 2018 will start accruing unlawful presence at that time and will no longer be deemed to be in Duration of Status.  If a nonimmigrant in these statuses has been found in violation prior to this date or had their Form I-94 expire previously, they will start to accrue unlawful presence on the earlier date.  This is a significant change in policy and the understanding of duration of status and changes the requirement that only a finding by USCIS of being out of status when adjudicating a request for another immigration benefit or a finding by an immigration judge triggers unlawful presence.  Now simply being out of status as of August 9, 2018, would trigger the start of the calculation of unlawful presence.

As of August 9th if the policy becomes procedure, students will begin to accrue unlawful presence if they are not in lawful nonimmigrant status on or after August 9, 2018, defined by no longer pursuing the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.  Additionally, 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)), they will begin to accrue unlawful presence.

8 CFR 214.2 allows an additional 60-day period to prepare for departure from the United States or to transfer.   An F-1 student authorized by the DSO to withdraw from classes will be allowed a 15-day period for departure from the United States. The Regulations also allow for what is commonly known as “Cap Gap” wherein an F-1 student who is the beneficiary of a Cap Subject H-1B petition with a change of status request is automatically extended until October 1st of the fiscal year in which the H-1b is filed.   As many immigration practitioners know, H-1b petitions often are not adjudicated by October 1st and this will put those F-1 students who would have been allowed to stay in the U.S. in reliance of Duration of Status after the Cap Gap period has ended at risk of accruing Unlawful Presence if they remain in the United States.  As such, this change in policy is fundamentally unfair because it was made after the filing of the fiscal year H-1B applications and will impact numerous students.

Furthermore, it is not clear how the government will allow for Re-instatement of Student status, as per the regulations at 8 CFR 214.2(f)(16), where a student who has been out of status for less than 5 months or shows an exceptional circumstance can be re-instated by USCIS and re-enrolled in school.  Re-instatement requires that the student does not have a record of repeated or willful violations of USCIS regulations.  However, if the Unlawful Presence has started to accrue, it is questionable whether USCIS will approve such requests.

As the Policy Memorandum proposes a material change in the accrual of Unlawful Presence for Students, Exchange Visitors and Vocational Students, it is sure to bring legal challenges.  The proposed change will essentially ensure that those who come here to study face additional challenges beyond their studies.

Please keep tuned in to this blog for further information as it becomes available.