On August 9, 2018, United States Citizenship and Immigration Services (USCIS) issued a final policy memorandum titled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," which changes long-standing policy on when unlawful presence accrues for individuals who violate their status in the United States. While the final memorandum does address some concerns regarding J-1 reinstatement (raised in SHRM comments submitted to USCIS), the underlying policy is largely unchanged from the policy proposed in May for which SHRM submitted the comments.
What is the new policy on unlawful presence?
Under the new policy, unlawful presence can begin accruing "the day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity." Under prior policy, unlawful presence would not accrue until after USCIS formally found that F, J or M status had been violated.
What is the practical implication of this policy change?
In practical terms, an F, J or M nonimmigrant now might accrue unlawful presence for a violation of which they are not even aware. For instance, an F-1 student who inadvertently works more hours than is allowed on curricular practical training and remains in the United States in F-1 status could accrue unlawful presence for months or years before USCIS finds their status was violated. Similarly, if a mentoring plan for F-1 STEM Optional Practical Training (OPT) extensions is found to have been violated, unlawful presence could theoretically be found to have accrued from the beginning of the OPT experience.
The most significant impact falls on F-1, J-1 and M-1 visa holders with a visa valid for "D/S" (duration of status), as the status could be construed to have ended as of the date of the violation.
What changed from the proposed memorandum in May?
The new memorandum changes the policy regarding F-1 and M-1 reinstatement. Unlawful presence will not accrue during the pendency of an F-1 or M-1 reinstatement application if it is timely filed (meaning the applicant has not been out of status for more than five months). If a reinstatement application is ultimately approved, unlawful presence will not have accrued for any of the time the applicant was out of status.
The memorandum also accounts for the J-1 reinstatement process. Under this section, J-1s will not accrue unlawful presence for the time they were out of status if they are reinstated under 22 CFR 62.45. (Note: 22 CFR 62.45 covers both minor and technical infractions, which can be corrected by a program sponsor, as well as the full reinstatement process that requires Department of State approval. SHRM sought and received clarification from USCIS that correction of minor and technical infractions also prevents accrual of unlawful presence.)
Does this policy apply to dependents as well?
Yes. If an F-1, J-1 or M-1 is found to have violated his or her status, unlawful presence will also accrue for any F-2, J-2 or M-2 dependents (spouses, children and parents) from the date of the primary visa holder's status violation.
When is the policy effective?
The policy took effect on August 9, 2018. Individuals in F, J and M status who failed to maintain their status will be affected as follows:
For failure to maintain status before August 9, 2018:
Unlawful presence began accruing on August 9, 2018, unless the individual already started 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 the individual's I-94 expired; or
- The day after an immigration judge ordered the individual excluded, deported or removed (whether or not the decision is appealed).
For failure to maintain status on or after August 9, 2018:
Unlawful presence begins accruing on the earliest of any of the following:
- The day after the individual no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
- The day after the individual completes the course of study or program, including any authorized practical training plus any authorized grace period;
- The day after the individual's I-94 expires; or
- The day after an immigration judge orders the individual excluded, deported or removed (whether or not the decision is appealed).
What are the consequences for accruing unlawful presence?
Once more than 180 days of unlawful presence have been accrued, the individual would be subject to a three-year bar on admission to the United States; once more than one year of unlawful presence has been accrued, the individual would be subject to a 10-year bar on admission to the United States.
What concerns did SHRM raise about the memorandum?
While USCIS solicited comments for the rule, the memorandum has not undergone the full notice and comment process required under the Administrative Procedure Act (APA). Our comments argued that a policy change such as this must undergo the full APA notice and comment process and that the policy violates our principles of fairness, competitiveness and innovation. Other than the changes made regarding reinstatements, our comments remain unaddressed.