On August 9, 2018, the U.S. Citizenship and Immigration Services (USCIS) published new guidance relating to unlawful presence for F (student), J (exchange visitor), & M (vocational/technical student) nonimmigrants. This guidance also affects those on dependent visas (F-2, J-2, & M-2) such as spouses and children.

Unlawful Presence & Repercussions

Unlawful presence is the time that one is within the United States without being properly admitted by a Customs and Border Patrol agent (CBP) or when one overstays his or her authorized period of stay. Accruing unlawful presence can lead to serious repercussions, including the following bars on admission to the United States:

  • A 3-year bar may be imposed on a foreign national after having accrued over 180 days, but less than 1-year of unlawful presence.
  • A 10-year may be imposed on a foreign national after having accrued over 1 year of unlawful presence.
  • A permanent bar may be imposed on a foreign national if they have entered the United States without being properly admitted by CBP or after having accrued an aggregate of more than 1-year of unlawful presence during one or multiple period of stays in the United States.

Accruing Unlawful Presence

Under prior policy, unlawful presence did not accrue until there was a formal finding of a status violation made by a U.S. official. Now unlawful presence for F, J and M nonimmigrants starts when one of the following circumstances occurs:

  • F, J, or M nonimmigrant visa holders or their dependent relatives who failed to maintain lawful nonimmigrant status before August 9, 2018 will begin accruing unlawful presence on August 9, 2018.
  • The day after DHS denies a request for an immigration benefit.
  • The day after the period of authorized stay on Form I-94 expires.
  • The day after an immigration judge orders them excluded, deported, or removed from the United States.
  • The day after completing the course of study for the program (including authorized practical training and any grace period).
  • The day after the course of study or authorized activity is no longer pursued or the day after the F, J, or M nonimmigrant engages in unauthorized activity.

Dependents (F-2, M-2, J-2)

The authorized period of stay for dependents depends on the F-1, J-1, or M-1’s period of authorized stay and conduct.  Thus, dependents can accrue unlawful presence based on the circumstances of the F-1, J-1, or M-1 nonimmigrant. Dependents can also accrue unlawful presence based on their own conduct. For example, dependents can accrue unlawful presence by working without prior authorization. Dependents under the age of 18 cannot accrue unlawful presence.

Miller Mayer Advice

We advise caution. If you hold F, J, or M status you should:

  • Apply for an extension or change of status well before the expiration of your authorized period of stay.
  • If you complete your program/authorized practical training, leave the United States within the allowed grace period or apply for a change of status well before the expiration of your current authorized period of stay.
  • Consider applying for consular notification instead of change of status.
  • Do not work without prior authorization.
  • If there are any changes to your course load, such as dropping below full-time, taking a leave of absence, or transferring to a different school, consult with your international student office before those changes to ensure compliance.
  • Comply with your school policies and federal and state law.

If you have questions about your immigration status or how to avoid accruing unlawful presence, speak with someone at the international student office at your school or schedule a consultation with a Miller Mayer immigration lawyer. You can schedule a consultation with Miller Mayer by filling out our consultation form here: http://millermayer.com/immigration-lawyers/consultation-form

For more information on unlawful presence and bars to admissibility, visit USCIS’s webpage: https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissibility