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ATTENTION! IMMIGRATION HAS A NEW POLICY REGARDING UNLAWFUL PRESENCE FOR STUDENTS AND EXCHANGE VISITORS

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For nonimmigrants here on Student and Exchange visitor visas, beware.

On May 10, 2018, the United States and Immigration Services (USCIS) issued a policy memorandum changing the way they calculate the accrual of "unlawful presence" for foreign nationals currently or previously in academic student (F-1), vocational student (M-1), and exchange visitor (J-1) status, as well as their dependent spouses and children. This new policy is authorized under INA 212(a)(9)(B) and INA 212(a)(9)(C)(i)(I), is intended to target and reduce the number of visa overstays, and is in furtherance of President Trump's Executive Order: Enhancing Public Safety in the Interior of the United States. Note: The policy for determining unlawful presence of aliens who are not in F, J, or M nonimmigrant status remains unchanged.

What is "Unlawful Presence"?

Whenever a national or citizen from a different country enters the United States on a visa, or through the Visa Waiver Program, a US Customs and Border Protection official will inspect that person. If admission is approved, they will issue an I-94 Arrival/Departure card or under the more recent process, file an electronic record. Information in the I-94 record not only contains the date when the nonimmigrant arrived into the US, but also the date of when that person must depart. If the nonimmigrant remains in the US pass the period allowed, they will have overstayed their authorization and are present in the US without lawful status. Counting from the day after the authorized stay, any amount that the nonimmigrant remains in the US will be counted for purposes of determing period of "unlawful presence"; that is, the time in which you are present in the US without lawful status. Although most nonimmigrants are authorized to remain in the United States until a specific date indicated in the I-94 record, those admitted as F-1 students, M-1 vocational students, J-1 exchange visitors are frequently authorized to stay for the duration of their status (D/S), that is, for the duration of their specific program.

Impact of the New Policy

The accrual of unlawful presence is a significant issue because it may impact a person's ability to apply for immigration benefits in the future. People subject to a 3-year, 10-year or a permanent bar to admission as a result of accrued unlawful presence are generally not admissible to the United States, not eligible to apply for a visa, nor are they able to adjust status to permanent residency unless an exception exists, or they are eligible for a waiver of inadmissibility or other form of relief.

Effective Date of the New Policy: August 9, 2018

F, J, or M Nonimmigrants Who Fail to Maintain Nonimmigrant Status Prior toAugust 9, 2018

An F, J, or M nonimmigrant who has failed to maintain his or her status before August 9, 2018, will start to accrue unlawful presence based on that failure on August 9, 2018, unless he or she already started accruing unlawful presence on the earliest of the following:

(1) The day after the person's Form I-94 Arrival/Departure Record expired.  As previously mentioned, most F, J and M nonimmigrants entered with D/S, therefore, for these individuals, this is not a triggering effect. However, for all other nonimmigrant visa categories, overstaying past the authorized date is begins accrual of unlawful presence;

(2) The day after DHS/USCIS has denied a request for an immigration benefit, provided that DHS/USCIS made a formal finding that the person had violated his or her nonimmigrant status while adjudicating the request for the other immigration benefit; or

(3) The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered the person excluded, deported, or removed (whether or not the decision was appealed).

F, J, or M Nonimmigrants Who Fail to Maintain Nonimmigrant Status On orAfterAugust 9, 2018

An F, J, and M nonimmigrant begins to accrue unlawful presence due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following events:

(1) The day after the F, J, or M person's Form I-94 Arrival/Departure Record expires. Again, most F, J and M nonimmigrants entered with D/S, therefore, for these individuals, this is not a triggering effect. However, for all other nonimmigrant visa categories, overstaying past the authorized date is begins accrual of unlawful presence;

(2) The day after the F, J, or M nonimmigrant no longer pursues the course of study or authorized activity, or the day after the person engages in an unauthorized activity (Ex: Working without authorization);

(3) The day after completing the course of study or program (including any authorized practical training (i.e., OPT) plus any authorized grace period, generally 60 days); or

(4) The day after an immigration judge or, in certain cases, the BIA, orders the person excluded, deported, or removed (whether or not the decision is appealed).

As you can see, the policy change, which takes effect on August 9, 2018, is that USCIS begins calculating unlawful presence beginning the day the nonimmigrant no longer pursues the authorized activity (ex. For F-1, when they no longer attend an education program, etc), is employed without a requisite work permit, or does some other activity with is inconsistent with their visa category. The consequences are harsh so for F, M and J visa nonimmigrants, please beware of your actions and plan accordingly. If there are any changes, I will keep you updated.

Now that you have read my article and understand the consequences of overstaying your visa, I hope you take heed and pass along this information to your friends. There are too many Thai people being denied or barred as a result of not being informed about the law. As always, I am here for you.

If you have any questions still left unanswered or you have questions regarding other legal issues, email me at: This email address is being protected from spambots. You need JavaScript enabled to view it., my office at (818) 846-5639, or my Thai direct line at (818) 505-4921. Also be sure to check us out on the web at: WWW.JC4LAW.COM, and now on FACEBOOK at: https://www.facebook.com/ThaiAttorney  Be sure to follow (and "like") me for most recent updates in the law!

 

Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. If you have a specific question regarding your personal case, please contact the Law Offices of Joseph Chitmongran for a full consultation.