Starting on August 9, 2018, U.S. Citizenship & Immigration Services (USCIS) and the U.S. Department of State (U.S. Consulates and Embassies) began applying a stricter policy to calculate unlawful presence for F students, M vocational students and J exchange visitors in the United States. The policy makes nonimmigrant students and exchange visitors (as well as their dependents) who fall out of status more likely to face the 3/10 year-bar to re-entry under INA 212(a)(9)(B), following departure from the U.S. It also makes them more vulnerable to the permanent bar under INA 212(a)(9)(C), caused by illegal re-entry or attempted illegal re-entry following accrual of unlawful presence of more than one year.
The August 2018 USCIS Policy and DOS Policy state that F, M and J nonimmigrant visa holders begin to accrue “unlawful presence” the day after they violate the terms of their status.
With this policy change, it is no longer required that students and exchange visitors — who are admitted to the U.S. for duration of status (D/S) — be given notice of the status violation by USCIS or an Immigration Judge in order for unlawful presence to begin. The removal of this procedural safeguard creates harsher penalties to nonimmigrants who fall out of F, M or J status, even when the violation is accidental, inadvertent, or due to extraordinary circumstances beyond their control.
[UPDATE: On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a nationwide injunction (PDF) enjoining USCIS from enforcing the Aug. 9, 2018, policy memorandum titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Until the case is resolved, USCIS will continue to apply the prior policy guidance found in the May 6, 2009 memorandum, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act (PDF).]
What is the 3/10-Year Bar Under INA 212(a)(9)(B)(i)?
Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).
The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.
Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).
There are certain exceptions to the unlawful presence rules. For example, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars. Furthermore, a minor who is unlawfully present does not accrue any time toward the 3 or 10 year bar until he turns 18.
What is the Permanent Bar Under INA 212(a)(9)(C)(i)?
Section 212(a)(9)(C)(i)(I) of the INA inflicts a permanent bar if you illegally enter or attempt to illegally enter the U.S. following accrual of more than 1 year of unlawful presence on or after April 1, 1997.
The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.
Unlike with the 3/10-year bar under INA 212(a)(9)(B), there are no exceptions for minors when it comes to the permanent bar. So if you were under 18 when you came to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.
What is Unlawful Presence?
The term “unlawful presence” is defined in section 212(a)(9)(B)(ii) of the INA. It refers to a person who “is present in the United States after expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”
To accommodate unexpected changes in academic programs and plans, the U.S. government normally admits F, M, and J nonimmigrants for duration of status (D/S) instead of up to a specific date. This means nonimmigrant students and exchange visitors may remain in the U.S. as long as they maintain their status, i.e. have a full course of study or remain in the exchange program, avoid unauthorized employment or other unauthorized activities, and timely complete their academic or exchange program or obtain an extension.
What are the Effects of the Unlawful Presence Policy Change?
Until the policy change went into effect, USCIS and the DOS interpreted the law to require notice of a status violation to persons admitted for D/S in order for unlawful presence to begin. A formal finding of a status violation is made by USCIS, an Immigration Judge, or the Board of Immigration Appeals in the context of an application for an immigration benefit (e.g. change of status or extension of status request) or in removal proceedings, whichever is earlier.
A prior USCIS May 6, 2009 memorandum stressed “the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.” The memo noted,”…it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (‘period of stay not authorized’). Although these concepts are related (one must be present in an unlawful status in order to accrue unlawful presence), they are not the same.”
With the policy change, USCIS no longer distinguishes between falling out of status (including minor and technical violations) and accruing unlawful presence. Rather than considering unlawful presence to begin accruing the day it denies an application or petition for immigration benefits, USCIS will now find that unlawful presence began retroactive to the date it determines a status violation occurred. The DOS updated its Foreign Affairs Manual to incorporate this policy change and guide consular officers in determining whether the unlawful presence bar applies.
Under the new policy, “unlawful presence” will begin the day after a status violation occurs, even if the person has no idea that s/he has fallen out of status. Examples include accidentally engaging in unauthorized employment; relying on erroneous advice by a Designated School Official (DSO) regarding reduced course load; and missing work for 90 days or more due to a serious injury while on Optional Practical Training (OPT).
USCIS will apply the policy retroactively; nonimmigrant students and exchange visitors who are found to have violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.
F, M or J nonimmigrants who failed to maintain status before August 9, 2018, start accruing unlawful presence based on that failure on August 9, unless they already started accruing unlawful presence on the earliest of the following:
- The day after USCIS denied the request for an immigration benefit, if USCIS made a formal finding that they violated their nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after the Form I-94, Arrival/Departure Record, expired, if the F, M or J nonimmigrant was admitted for a date certain; or
- The day after an immigration judge ordered them excluded, deported or removed (whether or not the decision is on appeal).
F, M or J nonimmigrants who failed to maintain status on or after August 9, 2018, start accruing unlawful presence on the earliest of the following:
- The day after the F, M or J nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he engages 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 Form I-94 expires, if the F, M or J nonimmigrant was admitted for a date certain; or
- The day after an immigration judge orders them excluded, deported or removed (whether or not the decision is on appeal)
When determining whether an F, M or J nonimmigrant accrued unlawful presence and was no longer in authorized stay, USCIS will consider information related to the person’s immigration history, such as:
- information in the systems available to USCIS
- information in the person’s record, including the person’s admissions concerning his immigration history or other information discovered during adjudication of an application or petition
- information obtained through a Request for Evidence or Notice of Intent to Deny, if any
USCIS’ unlawful presence policy change, in combination with its updated guidance on Notices to Appear and Requests for Evidence, will have dire consequences for nonimmigrant students and exchange visitors, as well as their dependents.
While there is a 212(d)(3) nonimmigrant waiver and a Form I-601/INA 212(a)(9)(B)(v) immigrant waiver for the 3/10 year unlawful presence bar, they come with certain eligibility standards and they are not granted in every case. There are also limitations to obtaining a Consent to Reapply (I-212 waiver) to be excused from the permanent bar under INA 212(a)(9)(C).
New policies are not as binding as changes in the law passed by Congress, or regulations issued through notice-and-comment rulemaking. Still, unless the policy change is rescinded or is struck down by federal courts, it reflects how USCIS and the DOS will calculate unlawful presence for F-1, M-1 and J-1 nonimmigrants and their dependents (F-2, M-2 and J-2) as of August 9.
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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.
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