International Students Beware: How Recent Changes to a 20+ Year Rule May Lead to Your 10 Year Ban Fr
USCIS published a policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” on August 9, 2018. This new policy addresses the reproductions of violating a nonimmigrant status for nonimmigrant academic students (F), vocational students (M), and exchange visitors (J). An individual with F, M, or J status will accrue unlawful presence in the following circumstances:
The day after they stop pursuing academic study or an authorized activity
The day they pursue an unauthorized activity
The day after a course of study or program is completed along with any grace period
The day after an authorized stay expires
The day after an individual is deemed removed by an immigration judge; regardless of an appealed decision
To understand if a status violation has occurred, USCIS will consider all of the information that is found in the USCIS system, the information in the individuals file, and any information that is accumulated through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
The Old Policy
When F, M, and J nonimmigrants come to the United States, they are not issued a date in which they need to return and instead are allowed to stay for the “duration of their status,” displayed as D/S on their Form I-94 Arrival/Departure Record by a U.S Customs and Borders Protection officer. This means that they may stay in the United States as long as they are maintaining their nonimmigrant status which usually follows a full course study, staying in an exchange program, not participating in an unauthorized activity, or employment and keeping up with their program in a timely manner. For the past 20 years prior to this memorandum, those who were in the United States in “D/S” would not be found of having unlawful presence until an immigration judge or officer stated that they have violated their status.
The New Policy
The new policy memorandum is very concerning for many reasons. Students can fall out of status easily and without knowledge by simply being one unit behind a full course of study or participating in an “unauthorized activity” that may be completely innocent. F-1 students are currently only allowed to work 20 hours a week in a "qualifying on-campus job.” If a student accidentally works an hour over their 20 hour maximum, they can be found to be participating in an unauthorized activity and violating their status.
Prior to the August 9th, 2018 policy memorandum students were not usually labeled as unlawfully present until a formal status violation was determined, giving students the benefit of the doubt on many occasions. Students who fall out of status can be subjected to 3 to 10 year bars just after completing their education here in the United States. Many students will not become aware of their violation until after they depart the United States and are unable to get back into the country.
Any individual who accrues over 180 days of unlawful presence and leaves the United States will be banned from returning for up 3 years and up to 10 years for over a year of unlawful presence.
If you have any questions regarding the final memorandum, please contact Attorney Nicholas J. Mireles at NicholasMireleslegal@gmail.com.