USCIS has published a draft of a policy memorandum substantially broadening its definition of unlawful presence for F, M and J nonimmigrants and their dependents, and thereby potentially subjecting far more nonimmigrants to the three or ten-year bars to reentry into the US after their departure.
The US immigration laws impose a three or ten-year bar on certain nonimmigrants who overstay or otherwise violate the terms of their status and accrue unlawful presence and then depart the US. If a nonimmigrant with a certain date of expiration on her I-94 card overstays that date by more than 180 days and then departs the US, then she cannot reenter for three years. If she overstays for more than one year, then she cannot reenter for 10 years. In addition, individuals who have accrued more than one year of unlawful presence in the US, whether in a single stay or during multiple stay in the US, and who reenter or attempt to reenter the US without being admitted or paroled are permanently inadmissible. Also, a nonimmigrant who does not overstay the expiration date but has a formal finding against her by USCIS or an immigration judge that she has violated the terms of her status will be subject to the same bars if more than 180 days or one year elapses since the determination of the status violation. It should be emphasized that only a departure from the US triggers the bar.
Only with a waiver can foreign nationals reenter the US within this period of inadmissibility. A waiver for a nonimmigrant visa entry (for a temporary period) is available to any foreign national (INA §212(d)(3) waiver). The 212(d)(3) waiver requires a weighing of at least three factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration law, or criminal law violation, if any; and (3) the nature of the applicant’s reasons for wishing to enter the United States. However, a waiver for an immigrant visa (or legal permanent residency) is available only to those foreign nationals who can show extreme hardship to a parent or spouse who is a legal permanent resident or US citizen.
Students in F-1 and M status and exchange visitors in J-1 status, and their dependents, are not given a precise date of expiration on their Forms I-94, but rather a designation of “duration of status” or “D/S.” Before USCIS’ policy change, unlawful presence did not apply to those with a designation of duration of status on their Form I-94s who overstayed or otherwise violated the terms of their status, unless an immigration judge or USCIS made a formal finding of a status violation against them. Unlawful presence would be start to be counted from the date of the finding of the status violation and once more than 180 days or one year elapsed since the order, then only after departing the US would the foreign national be subject to the three or ten-year bar to reentry.
Therefore, under the old rules, if an F-1 student overstayed for more than one year after her authorized status expired, including the completion of her studies, the completion of any optional practical training, and the 60-day grace period, she would not incur any unlawful presence or trigger the three or ten-year bar to reentry upon her departure from the US.
It is important to distinguish between unlawful presence and maintenance of lawful status in the US. Not all violations of lawful status are unlawful presence, triggering the three and ten-year bars to reentry. For example, an H-1B worker who works without status during the validity period of his H-1B visa petition may be violating the terms of his status but he is not accruing unlawful presence. Only when a formal finding by USCIS or an immigration judge has been made against him for such violation would it trigger the bars.
Under the new policy memorandum, USCIS will calculate unlawful presence much earlier for these F, M and J nonimmigrants by finding that it will start upon a status violation, even one that is not the subject of a formal finding by an immigration judge or USCIS. Under the memo, the following rules apply:
Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:
- 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 their 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).
Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
- 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 the 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).
Such a change on unlawful presence calculation is highly unfair to the foreign national, who may unknowingly violate the terms of her status. Immigration policy is highly variable and it is challenging even for immigration attorneys to always be apprised of the latest developments in immigration policy and law. For example, USCIS has recently stated that it may find that F-1 STEM optional practical training (OPT) status may not allow the F-1 student to be placed at a third party site.
Also, the current policy of only triggering unlawful presence once a formal status violation finding has been made against the foreign national provides her with notice of the violation and an opportunity to rebut an incorrect finding, either by contesting a USCIS determination or having a hearing before an immigration judge. Even H-1B workers who violate the terms for their status but otherwise do not overstay the expiration date on their Form I-94 are not deemed to have started the clock for unlawful presence.
The public has until June 11, 2018, to comment on the memo and it will take effect on August 9, 2018. Please email all comments to firstname.lastname@example.org.