On May 10th, 2018 United States Citizenship and Immigration Services (USCIS) posted a policy memorandum detailing the agency’s changes in “the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status.”

These changes outlined in the memorandum are intended to reduce the amount of nonimmigrant individuals who overstay their period of admission in the U.S., and to detail how the agency carries through the unlawful presence grounds of inadmissibility.

The memorandum states that those holding F, J or M status that fail to maintain their status before August 9th, 2018 will begin logging unlawful presence on that date based on that failure, unless said individual have already begun accruing unlawful presence on the earliest of any of the following:

•The day after the Department of Homeland Security (DHS) denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;

•The day after their I-94 form expired; or

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

Individuals holding F, J, or M visa status who fail to maintain their status on or after August 9, 2018 will start accruing unlawful presence or after the earliest of any of the following:

•The day after they no longer pursue or study or the authorized activity, or the day after they engage in an unauthorized activity

•The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;

•The day after the I-94 expires; or

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

“Previous guidance was far more liberal on the calculation of unlawful presence for students. This new interpretation will change the advice that lawyers are giving to students about the consequences of falling out of status,” says DLG attorney Frances Hayden on this latest news.

USCIS encourages those nonimmigrants holding F, J, and M status to refer to the policy memorandum for additional information on this change and to discuss how these changes could affect them with their Designated School Official.

D’Alessio Law Group is closely monitoring this news and will provide updates as needed. If this news affects your or if you want to know how this impacts your immigration plans, please reach out to your designated DLG professional.

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