F, J, and M Nonimmigrants: New Changes to Unlawful Presence

Early this month, USCIS released new policy guidelines for determining the lawful status of “student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States.” The change will primarily alter the ways in which USCIS officers will determine the accrual of unlawful presence for nonimmigrant students and visitors. According to USCIS, the policy memorandum comes in conjunction with President Trump’s Executive Order, Enhancing Public Safety in the Interior of the United States.

Outlined Policy

The new memo dictates that those in F, J, or M status who failed to maintain their status before August 9^thof this year will begin to accrue unlawful presence  from the date their status elapsed after any of the following occur:

• The day after DHS denies a request for an immigration benefit due to a formal finding that the student or visitor violated their nonimmigrant status while adjudication a request for a new benefit;
• The day after their I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain period; or
• The day after either an immigration judge or Board of Immigration Appeals, orders them to be excluded, deported, or removed, regardless if the decision is appealed.

Those in F, J, or M status who do not maintain their status on or after August 9^th, 2018 will begin accruing unlawful presence once any of the following occur:

• On the day they no longer pursue a course of study or the authorized activity indicated by their visa, 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 their I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain period; or
• The day after either an immigration judge or Board of Immigration Appeals, orders them to be excluded, deported, or removed, regardless if the decision is appealed.

Similarly, nonimmigrant dependents, like F-2, J-2, or M-2 (spouse or unmarried children under 21) are admitted for a certain date or D/S contingent on the F-1, J-1, or M-1 nonimmigrant’s period of authorized stay. Once the F-1, J-1, or M-1’s nonimmigrant’s period of stay ends, the nonimmigrant dependents too loose their status. F-2, J-2, or M-2 nonimmigrants also may lose their status due to their own conduct or circumstances. Since an alien under 18 years of age does not accrue unlawful presence, any F, J, or M nonimmigrant under 18 years or age does not accrue unlawful presence.