U.S. Citizenship and Immigration Services announced late Thursday that it has made a revision to a final policy memorandum that takes effect immediately on how “unlawful presence” is calculated for foreign students and exchange visitors who are subject to the three- and 10-year bars on admission based on “unlawful presence.”

The original memorandum, issued May 10 with an effective date of Aug. 9, expands and accelerates the accrual of unlawful presence for nonimmigrants in F (student), M (vocational student), and J (exchange visitor) status. They will accrue unlawful presence if they fail to maintain status, and unlawful presence will be counted from the day after they violate their status. Under previous longstanding policy, unlawful presence was not triggered for students (who are admitted for “duration of status” rather than for a specific time period) until the government made a finding that the individual was out of status.

Following a 30-day public comment period that ended June 11, the agency has decided to address a concern expressed by stakeholders and made the following revisions:

  • Under the revised policy, F and M nonimmigrants who fall out of status and file for reinstatement of that status within five months of having fallen out of status will not accrue unlawful presence during the period that their reinstatement application is pending with USCIS.
  • If the reinstatement application is denied, unlawful presence resumes the day after the denial. If the application is ultimately approved, whether or not it was filed within the five-month window, unlawful presence generally does not accrue while they were out of status.
  • J nonimmigrants may file a reinstatement request with the State Department. If the department grants reinstatement, the individual will generally not accrue unlawful presence from the time he or she fell out of status to the time of reinstatement.

Background: The calculation of unlawful presence is important because nonimmigrants who accrue a certain number of days of unlawful presence and leave the United States are barred from re-entering. F, M and J nonimmigrants who accrue more than 180 days but less than one year of unlawful presence and leave the country are barred from re-entering for three years, and accrual of more than one year of unlawful presence will lead to a 10-year bar.

Under the original version of the policy memorandum, F, M and J nonimmigrants who fell out of status and filed a reinstatement application could suspend the accrual of unlawful presence for the period they were out of status if their application for reinstatement was ultimately approved, but they would continue to accrue unlawful status (and potentially be subject to a subsequent re-entry bar) while they sought reinstatement.

BAL Analysis: The revision allows F, M and J individuals to toll the unlawful presence clock while a reinstatement application is pending, but it resumes if the application is denied. Individuals should ensure that they are in compliance with all term of their status, and F and M students should be mindful of the five-month window for filing a reinstatement application. USCIS is holding a national stakeholder engagement about this policy memorandum on Aug. 23. Those interested in attending must register here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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