Unlawful Presence Bar Will Start to Apply on February 5, 2019 for Students Who Have Failed to Maintain Status

On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum updating the USCIS Adjudicators Field Manual (AFM) to state that students in F, J, and M status who are admitted for “duration of status” or “D/S” will start accruing unlawful presence on or after August 9, 2018 if they have failed to maintain status. Examples of failing to maintain status include working without authorization or remaining in the U.S. beyond the course of study. Previously, students only began accruing unlawful presence if DHS made a formal finding, the Form I-94 expired after a specific date, or an immigration judge ordered the student removed. This change in practice has been widely criticized by immigration practitioners and is currently the subject of a pending lawsuit.

This policy update is significant, because now, if a foreign national accrues more than 180 days of unlawful presence, he/she would be barred from returning to the U.S. for 3 years upon departure. If a foreign national accrues more than 1 year of unlawful presence, he/she would be barred from returning to the U.S. for 10 years upon departure. As of February 5, 2019, 180 days will have elapsed from the publication of the memo. Therefore, foreign nationals who have failed to maintain status starting on or before August 9, 2018, will trigger the 3-year bar as of February 5, 2019. If you believe this bar may apply to your situation, please contact our offices as soon as possible to discuss your options.