USCIS’s new policy regarding “unlawful presence” for foreign students (academic and vocational) and exchange visitors and their dependents is now in effect. This means that foreign students (F-1, J-1, M-1) will begin accruing unlawful presence on the day after the student violates the terms of his or status, such as fails to pursue the authorized course of study or practical training or engages in unauthorized employment.
Why is this such a big deal and the why are the consequences potentially enormous? The consequences can be enormous because immigration law provides that an individual who has accrued 180 days of “unlawful presence” is barred from re-entering the U.S. for 3 years; for those with 365 days or more of unlawful presence, the bar is 10 years.
You may ask, shouldn’t the nonimmigrant know if she has violated the terms of her status. Not always. Most nonimmigrants are admitted to a specific date, and are on notice that they will begin to accrue unlawful presence if they stay beyond that date. But F, J and M visa holders are not admitted through a date certain, but rather, through the “duration” of their underlying educational or training programs, called “duration of status” or “D/S,” a period of time that may and often does change after arrival. For this reason, USCIS (and State Department) policy for the last 20 years has been that F, J and M nonimmigrants begin to accrue unlawful presence the day after a DHS officer or immigration judge makes a finding that the person is out of status, in other words, the day after the person is put on notice that a violation of status has occurred. Under the new policy, “unlawful presence” will begin the day after a status violation occurs, even if the foreign national has no idea that she has violated status. Worse, the policy will be applied retroactively; those who violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.
One can easily imagine the types of minor and technical violations that will render foreign students and scholars subject to the 3- and 10- year bars to admissibility. Here are a few:
One can easily imagine the types of minor and technical violations that will render foreign students and scholars subject to the 3- and 10- year bars to admissibility. Here are a few:
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