A new policy memo on unlawful presence was issued by USCIS on May 10, 2018. Unlawful presence is defined as presence in the United States after the expiration of the authorized period of stay. Under the new policy guidance unlawful presence starts accruing as outlined below:
Before August 9, 2018
An individual in F, J, or M nonimmigrant status who has failed to maintain his or her status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless he or she already started accruing unlawful presence on the earliest of the following:
- The day after the U.S. Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the person had violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after the person’s Form I-94 Arrival/Departure Record expired; or
- The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered the person excluded, deported, or removed (whether or not the decision was appealed).
On or After August 9, 2018
An F, J, and M nonimmigrant begins accruing unlawful presence due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:
- The day after the F, J, or M nonimmigrant no longer pursues the course of study or authorized activity, or the day after the person engages 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 person’s Form I-94 Arrival/Departure Record expires; or
- The day after an immigration judge or, in certain cases, the BIA, orders the person excluded, deported, or removed (whether or not the decision is appealed).
Under current policy there is a distinction between violating visa status and unlawful presence. Status violations may include unauthorized employment or participating in activities not authorized by the visa status. Under current policy, because there are no specific end dates for D/S status, unlawful presence does not accrue unless USCIS actually makes a formal finding of a violation of status or they are ordered removed, deported or excluded.
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USCIS New Policy Memo:
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