U.S. Citizenship & Immigration Services (USCIS) has issued revised policy guidance with respect to the accrual of unlawful presence by F, M and J nonimmigrants.  Under this guidance, effective August 9, 2018, F-1 students, M-1 vocational students and J-1 exchange visitors will begin to accrue unlawful presence upon failing to maintain the terms of their status.  Previously, unlawful presence only began to accrue upon a formal finding by a government agency, such as a denial of an immigration benefit, that the visa holder violated his/her status, or in the rare instance of overstaying the period of admission granted by the immigration authorities.  F, M and J visa holders are typically admitted to the U.S. for the duration of status (“D/S”) which means that technically, they cannot overstay their admission period; there is no admission end date.  However, under the new policy F, M and J visa holders can be deemed unlawfully present (and thus, inadmissible to the U.S. in the future) even where there is no overstay and no formal finding by a government agency.  In other words, certain acts – from the new guidance, it is unclear which acts in particular – can trigger unlawful presence unbeknownst to the visa holder.  Coupled with other recent revised policy guidance issued by this administration, practitioners expect that F, M and J nonimmigrants will be placed into removal proceedings more readily upon the denial of an immigration benefit in an overt effort by the current administration to curb legal immigration.

To understand and appreciate the impact of this new policy, it might be helpful to understand the unlawful presence ground of inadmissibility.  Unlawful presence can bar a visa holder from returning to the U.S. in any visa status.  Specifically, when one is unlawfully present for 6 months and up to less than 1 year, and then departs the U.S., s/he can be barred from returning to the U.S. for 3 years.  Unlawful presence for 1 year or more followed by a departure can cause a person to be barred from returning the U.S. for 10 years.  Moreover, the practical reality is that once a foreign national has been unlawfully present in the U.S. for any period of time, there is a chance that their subsequent visa applications will be unsuccessful at the discretion of the consular officer.

Pursuant to the new policy guidance, unlawful presence for F, M and J visa holders can be triggered by status violations such as:

·       ceasing to attend the F or M school (dropping out of school)

·       leaving the J-1 program

·       staying in the U.S. beyond the grace period at the end of the approved course of study,              practical training period or J-1 program

·       engaging in “an unauthorized activity”

While the first three scenarios are more straightforward, the last scenario is quite vague and therefore seriously problematic.  The new policy memo does not define what these “unauthorized activities” are.  Practitioners speculate that these activities might include: applying for a green card or to change status to a work visa (which is inconsistent with the required temporary intent of F, M and J visas); working without authorization or outside the terms of an authorized training program; or, even something as harmless as submitting a self-evaluation for the STEM OPT training plan a day later than the permitted 10 day window.  F, M and J nonimmigrants are strongly encouraged to stay in close contact with their Designated School Official (DSO) or J-1 Program Sponsor and to consult an experienced immigration attorney to determine whether their activities in the U.S. will trigger unlawful presence thereby hindering their ability to remain in the U.S. legally and apply for immigration benefits in the future.

Pursuant to the new policy guidance, unlawful presence will begin to accrue on day 1 when the visa holder violates the terms of his/her status.  However, due to the lack of clarity regarding which activities in particular might trigger unlawful presence, it will be very difficult for the visa holder (even the more sophisticated ones) to remain compliant.  At the same time, USCIS officers are granted broad discretion to find status violations without clear guidance or framework.    

This policy guidance comes in the wake of several policy updates aimed at reducing the levels of legal immigration in the United States authorized by President Trump’s Buy American and Hire American (BAHA) Executive Order issued in April 2017.  These policy updates have included: the elimination of deference to prior adjudications; increased requests for evidence; increased scrutiny of H-1B specialty occupation petitions; extreme vetting at U.S. consular posts abroad; amendments to the interpretation  of temporary intent; increased employer site visits; mandatory in-person interviews for all employment-based adjustment of status applicants; greater discretion in issuing straight denials rather than requests for evidence; and increased authority by USCIS to issue Notices to Appear in immigration court.

LTF will continue to monitor the implementation of the F, M, and J unlawful presence policy guidance as well as further developments stemming from BAHA.