New Policy on Accrual of Unlawful Presence
On May 8, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a memo proposing a fundamental change to the way it counts accruing “unlawful presence,” which impacts those of you who are in F-1 and J-1 status, as well as your dependents. This new USCIS policy went into effect on August 9, 2018.
In the past, for those in F, J, and M status, accrual of unlawful presence did not occur unless a status violation was determined by an immigration judge or by USCIS when adjudicating a petition or application. However, this newly issued memo reverses this policy and now states that unlawful presence does start to accrue when a foreign national in F, J, or M visa status violates his/her status beginning August 9, 2018.
If you accrue 180 days of unlawful presence, but less than one year, you will be subject to a three-year bar on returning to the U.S. If you accrue one consecutive year or more of unlawful presence, you will be subject to a ten-year bar on returning to the U.S. Obtaining a waiver of these bars is possible, but difficult. This means that you would be ineligible to return to the U.S. for the period of the bar after you voluntarily depart the U.S.
What does this mean for you?
If you are in F-1 or J-1 status, or a dependent thereof, you must pay even more attention to ensuring that you are maintaining your status and not engaging in any status violation. Failure to do so could result in long-term immigration consequences. Please contact our office if you have any questions.