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USCIS Updates Unlawful Presence Policy Guidelines for Students

U.S. Citizenship and Immigration Services (USCIS) has published a final immigration memorandum updating its newly implemented unlawful presence policy, which changed how USCIS determined whether foreign students and participants of student exchange programs were lawfully in the country.

According to the memo, F- and M-visa holders will not be deemed as being in the country unlawfully while waiting for their visas to be reinstated, so long as they file their reinstatement applications no longer than five months after their status expires.

If, however, their reinstatement application is denied, they will automatically begin accruing unlawful presence the day after being notified of their denial. Likewise, J-1 visa holders with reinstatement applications that are approved will not accrue unlawful presence.

Policy Changes to Curb Overstays

In May this year, USCIS announced it would be revising how unlawful presence for F-, J-, and M-visa holders would be calculated in an effort to clamp down on the problem of overstaying foreign students. Under that change, unlawful presence begins after a violation of status or on August 9, 2018, whichever comes first.

The policy revision is a departure from the established protocol of beginning accrual of unlawful presence only after an official finding government finding that a status violation has occurred.

Problems with Accrual of Unlawful Presence

USCIS defines “unlawful presence” as presence in the United States without being officially admitted or after expiration of lawful presence authorized by the Department of Homeland Security (DHS). The problem with accruing unlawful presence is that aside from breaking the law, students who accrue enough unlawful presence (i.e. more than 180 days but less than a year) can be banned from reentering the country for at least three years after departure—10 if the accrual reaches 365 days.

This means that a foreign student studying in the country could either overstay his visa, forget to renew his status in time, or face delays in school, resulting in the accrual of unlawful presence. In turn, this could result in the student failing to renew his visa status and continue his studies, or, if he has finished his studies, receiving a lifetime denial of a non-immigrant visa and even permanent resident status, which could hurt his career.

The only way around this penalty is for the violator to be eligible for waivers of inadmissibility, which are notoriously difficult to obtain.

Options for Foreign Students

To avoid any of these issues and comply with their respective visa programs, foreign students and exchange participants are advised to consult their international student advisors prior to accepting any offers of employment or internships. Likewise, any changes to their course load that may cause them to extend their duration of U.S. schooling need to be planned carefully.

If you want to learn more about the F-, J-, and M-visa programs, or need assistance on applying for a student visa, the Lyttle Law Firm is ready to help. Schedule a consultation with immigration attorney Daniella Lyttle for a full review of your credentials.

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