WES Advisor Blog

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Changes to the Unlawful Presence Policy in the U.S.

Tuesday | November 27, 2018 | by Lucy Cheung

Student reading in a university library.

For international students and exchange visitors in the United States, things changed dramatically, if quietly, on August 9, 2018. On that date, U.S. Citizenship and Immigration Services (USCIS) published guidance that swiftly altered how “unlawful presence”—being in the country without legal status—can now be calculated.

Students and others in F, J, or M nonimmigrant status and their dependents can now begin accruing unlawful presence the day after their education or exchange programs end—potentially barring them from readmission to the U.S. for 10 years.

The End of Flexibility

Historically, nonimmigrant students and exchange visitors have been admitted as D/S, or duration of status, which provided flexibility for this group of visitors. D/S allowed international students and exchange visitors to complete their studies and remain in the country legally as long as the student continued to qualify for that nonimmigrant status.

D/S was a practical, reasonable acknowledgment that exact graduation dates are difficult to pinpoint, as are the end dates of other various education programs. Before August 9, students admitted under D/S did not accrue unlawful presence until an application was filed and USCIS determined that the student or exchange visitor had violated his or her status; or an immigration judge ordered the exclusion, deportation, or removal of the student or visitor.

But things have changed. This is how a footnote in the guidance reads:

Under the former policy, an alien admitted for duration of status who overstayed or violated such status did not immediately begin accruing a period of unlawful presence for purposes of INA 212(a)(9)(B). Nevertheless, such alien was illegally present in the United States and would be amenable to removal proceedings under INA 237(a)(1)(C), which renders deportable aliens who violate their nonimmigrant status or any condition of their entry.

According to a Broadcast Message to the Student and Exchange Visitor Information System (SEVIS) users on August 10, students and exchange visitors will now begin accruing unlawful presence on the earliest of the following:

  • The day after they no longer pursue the course of 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 Form I-94 expires; or
  • The day after an immigration judge orders them excluded, deported, or removed (whether or not the decision is appealed).

The first bullet point is particularly worrisome. There are many elements to a “full course of study” as well as “authorized activity”—some of which depend on the education or exchange program and the level of education offered.

With this new policy memo in place, the U.S. immigration system assumes that each student and exchange visitor is in charge of his or her own status and continued eligibility. Students and exchange visitors now need to be diligent in checking with their international student advisors, registrar, and attorneys to ensure that they are in compliance.

Why Is Unlawful Presence Important?

Under the Immigration and Nationality Act, a person who is unlawfully present in the U.S. for a period of more than 180 days but less than one year, and voluntarily leaves the U.S. before removal proceedings begins, is barred from readmission into the U.S. for three years from the date of departure or removal. When the unlawful presence period is a year or more, the bar for readmission to the U.S. is 10 years.

The 3- or 10-year bar from readmission to the U.S. can up-end the education, career, and life goals of international students and exchange visitors. Although there are limited waivers available for the unlawful presence bar, with this new policy memo, students and exchange visitors may begin to accrue unlawful presence without knowing it—and therefore not realize that they need to apply for a waiver.

Final Tips

The eligibility requirements of U.S. immigration law can be confusing. Unlawful presence and other immigration terms can be difficult concepts to grasp.

Incoming and current international students and exchange visitors now need to be meticulous about their status. Be sure to check with your advisors and responsible officers every few months to see if any immigration policies have changed, and how they might affect you. In addition, work with your school or sponsoring organization—as well as with a knowledgeable immigration attorney—to properly plan and prepare for your stay in the U.S.

Lucy Cheung is a partner at Goldstein and Cheung LLP in New York City, a law firm that practices immigration law exclusively.