By: Omar Nazarkhan and Angelita Chavez-Halaka
On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) proposed new policy guidance that would significantly impact students and exchange visitors. We would like to stress that these changes are currently being reviewed and have not been adopted.
The current policy distinguishes between the violation of one’s visa status and unlawful presence. A student or exchange visitor could violate his or her status through unauthorized activity (such as: unauthorized employment) but would not accrue unlawful presence.
The new policy, however, removes this distinction, and proposes that unlawful presence is triggered the moment any violation of status is committed. As a result:
- Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:
- The day after DHS denied the request for an 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 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 in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any 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 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).
Consequences of Failure to Maintain Status
- Individuals who have accrued more than 180 days but less than 1 year of unlawful presence face a 3-year bar to admission
- Individuals who have accrued 1 year or more of unlawful presence face a 10-year bar to admission
- Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.
What Employers and Employees Should Know
Ultimately, for the DHS to proceed with any new regulation, the change must first comply with the procedures detailed within the Administrative Procedures Act (APA), which governs agency rulemaking. A failure in meeting the requirements under the APA may lead to litigation. It is important to understand that this is not an overnight occurrence and will take time to work through.
Given this announcement, it is imperative for individuals to seek sound advice and to plan properly for any unexpected changes. We encourage the following:
- Be aware of your expiration dates, specifically your individual visa category expirations.
- Work with your Designated School Officer (DSO) if you desire higher courses of study which might qualify a maintenance of status
- Consult with your Immigration Practitioner to address any questions or concerns you should have and for more information regarding the options available to you.
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