USCIS Revises Final Guidance on Unlawful Presence for Students and Exchange Visitors

August 22, 2018

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

Teens taking a selfieU.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence after considering feedback received during a 30-day public comment period. Under the revised memo, effective August 9, 2018, F and M nonimmigrants who fall out of status and file within five months for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending, USCIS said.

On May 10, 2018, USCIS posted a draft policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised memo supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

“As a result of public engagement and stakeholder feedback, USCIS has adjusted the unlawful presence policy to address a concern raised in the public’s comments, ultimately improving how we implement the unlawful presence ground of inadmissibility as a whole and reducing the number of overstays in these visa categories,” said Director L. Francis Cissna. “USCIS remains dedicated to protecting the integrity of our nation’s immigration system and ensuring the faithful execution of our laws. People who overstay or violate the terms of their visas should not remain in the United States. Foreign students who are no longer properly enrolled in school are violating the terms of their student visa and should be held accountable.”

USCIS noted that on August 7, 2018, the Department of Homeland Security released the FY 2017 Entry/Exit Overstay Report. The estimated total overstay rates were lower in FY 2017 for F and J nonimmigrants, but the F, M, and J categories continue to have significantly higher overstay rates than other nonimmigrant visa categories, USCIS noted, “supporting the need to address the calculation of unlawful presence for this population.” For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student “has not been out of status for more than five months at the time of filing,” USCIS said. Under the revised memo, the accrual of unlawful presence “is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.”

USCIS noted that “if the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act.” Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Some immigration attorneys believe the revision to the policy is insufficient, especially for those students who may have violated their status earlier. Other potential stumbling blocks may include errors by USCIS or an educational entity entering information into the SEVIS system inaccurately, or students in optional practical training who may be found to have violated status if their training is later found inconsistent with their degrees or who worked at third-party sites that inadequately supervised them.

USCIS plans to hold a national stakeholder engagement regarding this policy memo on August 23, 2018. To receive an invitation to this engagement, submit your email address here.  

The USCIS announcement is here. The revised memo is here. Additional information on the revised memo is also available here.