On May 11, 2018, USCIS announced a stunning and unexpected reversal of decades of immigration policy, stating via a Draft Policy Memorandum that the agency will start counting unlawful presence from the date of a visa violation occurs rather than the date the agency decided that a violation occurred. This new policy is scheduled to go into effect on August 9, 2018. We encourage stakeholders to voice their opposition to this policy via USCIS' Policy Memoranda for Comment web page. Comments are due before June 11, 2018.

In a summary email, USCIS stated as follows:

Individuals in F, J, and M status who failed to maintain their status before August 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 the 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 August 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).

By way of background, F- M- and J-visa holders – both principals and dependents -- are generally not admitted for a date certain, but instead issued "Duration of Status" or "D/S" on their Forms I-94.   For these individuals, Form I-94 generally does not provide an expiration date in the same way that visitors (B-1/B-2), professional workers (H-1B), or other visa types. Rather, the student's or exchange visitor's status is controlled by the end dates of their programs as per Form I-20 or Form DS-2019. By regulation, these visa holders are also afforded a 30 or 60-day "grace period" thereafter to depart the U.S. or apply for another immigration benefit.

Students, exchange visitors, and their dependents sometimes however commit relatively minor status violations, such as briefly accepting employment without authorization or falling below the minimum number of credits required to maintain status. Until now, USCIS has considered these circumstances to place a visa holder out of status but not accruing unlawful presence.   Unlawful presence would only accrue if Form I-94 expired (rare, as granting D/S is the norm) or after USCIS denied an immigration benefit because of a status violation.

The accrual of unlawful presence can have grave consequences for potential immigrants and nonimmigrants alike. Just one day of unlawful presence voids a visa, and a nonimmigrant may only apply for visas in his or her own country of nationality thereafter. Worse, accrual of 180 days or more and then departure from the U.S. before deportation proceedings begin results in a three-year bar from reentry. A year or more of unlawful presence and then departure results in a 10-year bar. These bars are among the most draconian provisions of the U.S. immigration system and why so many undocumented immigrants cannot cure their situation.

This new policy could result in personal and professional catastrophe. For example, if an F-1 student begins working in a dorm room business startup during Freshman year without proper authorization, the government could take the position that such activities constituted "unauthorized activity" as per this new memorandum. By the time the student applies for an H-1B visa abroad after graduation, s/he might have unknowingly triggered the ten-year bar. Additionally, students who drop out of school – even for valid reasons such as a catastrophic accident – could also face their immigration prospects to the U.S. closed for 10 years or more.

Friday's memorandum illustrates the Trump Administration's latest move in its continued assault on the legal immigration system through its construction of an Invisible Wall making the legal immigration system more costly, cumbersome, and less effective.

It is worth noting however, that the Policy Memorandum's sudden upheaval of what was considered to be settled law could be subject to litigation as the agency did not proffer notice and comment rulemaking.  It may also be inconsistent with controlling statutory provisions.

For example, the Immigration and Nationality Act's definition of unlawful presence in the context of the three- and ten-year bars provides that it may only be counted upon illegal entry or expiration of Form I-94, not for status violations. Section 212(a)(9)(B)(ii) provides:

"[A]n alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled"

Additionally, USCIS is seemingly not expanding its newfound reasoning that status violations result in unlawful presence in other contexts. An H-1B visa holder who "moonlights" without authorization for another employer would not accrue unlawful presence. Moreover, representatives of Foreign Media (I-visa) holders are also granted "Duration of Status" upon entry and would not be affected by this new policy. This memorandum appears to be a targeted attack on protections afforded to students, exchange visitors, and their family members, at a precarious time when foreign students are looking to other countries for higher education. These seemingly disparate interpretations of unlawful presence in varying visa classifications might fail to pass judicial muster.

There accordingly exists strong arguments that the new policy is ultra vires and subject to attack before a district court. We encourage our clients to remain vigilant and contact us with any questions on how they, their students, and their family members may be affected by these new developments.

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