Some International Students Will Begin Accruing Unlawful Presence on August 9, 2018

Under a new memo that goes into effect tomorrow, August 9, 2018, some nonimmigrants in F (international student) status, J (cultural or educational exchange visitor) status, or M (vocational or technical school student) status may begin accruing unlawful presence (ULP) on August 9, 2018.

Nonimmigrants in F, J, or M status are ordinarily admitted into the United States for “duration of status,” which means the individual is permitted to remain in the U.S. for the period of time that it takes them to complete their studies or partake in their pre-approved program, plus any period of time beyond for authorized practical training. Since there is no specific expiration date set, individuals in a period of “duration of status” historically did not accrue unlawful presence until there was a formal finding of a status violation, typically by the Department of Homeland Security (DHS) or an immigration judge. Under a new memo issued by the administration, beginning on August 9, 2018, individuals in F, J or M status will begin to accrue unlawful presence at the time of a status violation, even if there is no formal finding of a violation by DHS or a judge.

Unlawful presence carries a very heavy penalty. Individuals who accrue more than 180 days of unlawful presence and then depart the U.S. are subject to the 3-year bar and unable to return to the U.S. during that time. Individuals who accrue more than 1 year of unlawful presence and then depart the U.S. are subject to the 10-year bar and unable to return to the U.S. for 10 years. While some individuals may qualify for a waiver of the 3 or 10-year bar, it is incredibly difficult to obtain such a waiver in practice.

Pursuant to the new memo, beginning on August 9, 2018, unlawful presence for F, J and M nonimmigrants will begin automatically in the following circumstances:

  • The day after the individual no longer pursues the course of study or the authorized activity, or the day after engaging in any unauthorized activity (such as working without authorization); or
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after being ordered excluded, deported, or removed by an immigration judge.

Unlawful presence will also begin to accrue to the dependent spouse and children of any F, J and M nonimmigrant who begins to accrue unlawful presence. Unfortunately, there are many situations where the determination of whether a status violation has occurred can be subjective or even unknown to the nonimmigrant, and the consequences carry potentially insurmountable challenges to these nonimmigrants and their families.

Please contact us if you’d like to schedule a consultation to discuss the impact of this new memo on your status.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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