USCIS Targets International Students and Visa Overstayers

USCIS unveiled a new memo recently with regards to unlawful presence for F, J, and M Nonimmigrants.

The new policy clarifies that F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date, start accruing unlawful presence as of August 9, 2018 or the day after a status violation occurs. This means that F, J or M visa overstayers now accrue unlawful presence as soon as they violate their status which could mean partaking in unauthorized employment or dropping out of school.

This is a major departure from longstanding prior policy whereby unlawful presence only began to accrue upon a formal finding by the government that a violation of status had occurred. This change is concerning because it may impact an individual’s ability to adjust status in the future. Six months of unlawful presence is a three year ban from the United States while a year of unlawful presence can mean ten years of inadmissibility. In such a situation, F, J, M visa holders must either extend or change their status before it expires, and leave the country if they are close to triggering the three year ban.

Before the unlawful presence kicks in, the grace period still applies for the F and J visa holders:

  • F-1: 60-day grace period following completion of a program of study as indicated on an I-20 or expiration of authorized F-1 Optional Practical Training.

  • J-1: 30-day grace period following completion of a J-1 student or scholar program as reflected on a DS-2019.

As far as reinstatement after falling out of status is concerned, F, J and M visa holders will not accrue unlawful presence during the pendency of their visa reinstatement applications if they file their applications within five months of falling out of status. If a reinstatement application is denied, unlawful presence will begin accruing the day after the denial was issued.

Given these changes, it is advisable that F, J, and M visa holders consult with their international students offices or an attorney with regards to how these new policies can impact them now and in the near future.

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