On Feb 07 2019 by Feige M. Grundman

CLIENT ALERT: Three-Year Unlawful Presence Bar Now Applies to Some F/J/M Nonimmigrants

It is now more than 180 days since implementation of the new unlawful presence policy by the United States Citizenship and Immigration Services (USCIS) affecting F-1 students, M-1 students, and J-1 scholars, as well as their dependents.

According to this policy, F, J, or M nonimmigrants who violated status prior to the policy’s implementation on August 9, 2018, began accruing unlawful presence on August 9, 2018. When an individual has accrued more than 180 days (but less than one year) of unlawful presence, and then depart the United States, they become subject to the three-year bar on reentry to the United States. This means that as of February 6, 2019, those individuals are now subject to a three-year bar on admissibility, even if they did not receive notification or a formal finding of a status violation from the government. After one year of unlawful presence, the bar is 10 years.

The new policy dictates that, for the first time, any status violation — no matter how technical and even if unknown to the foreign national — can result in accrual of unlawful presence, even if the government has not provided formal notice of a violation. This reverses a 21-year policy that provided that unlawful presence did not accrue for Fs, Js, and Ms until USCIS or an immigration judge notified the nonimmigrant of a violation.

Status violations that can now result in the triggering of unlawful presence accrual include working without authorization, staying in the United States beyond the end of a grace period, falling below a full course load without approval from the international office for F-1s, unauthorized work in a new program/location, a SEVIS violation, or failing to maintain insurance for J-1s. Once an admissibility bar is triggered, an individual cannot apply for a visa or other immigration benefit without obtaining a formal waiver from USCIS of the inadmissibility grounds.

Our office is co-counsel on federal litigation challenging this reversal of policy. Unless and until that litigation results in overturning this new policy, F, J, and M nonimmigrants need to be certain that they have never violated any of the terms and conditions of their status before traveling out of the United States.

For more information on this policy and its implications, click here to read our previously published article on it.