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By: Layli Eskandari Deal
On May 10, 2018, USCIS published a Policy Memorandum to provide guidance on how the agency will be calculating unlawful presence for F-1, J-1, and M-1 nonimmigrant visa holders and their dependents.
Generally, foreign students and exchange visitors are admitted to the United States for “Duration of Status”. This means that the student or the exchange visitor is admitted to the United States for as long as the individual is still doing the activity for which the visa was issued. For nonimmigrant (F-1 and M-1) this is generally for the duration of time that they are full time students plus the time they are in their period of authorized practical training. The length of time generally depends on their course of study. For Exchange Visitors (J-1) this is the period of time for their program to be completed. Previously, unless USCIS or an Immigration Judge affirmatively terminated the status, F-1, M-1 and J-1 visa holders and their dependents would not accrue unlawful presence in the United States.
USCIS is now providing the following guidance, which is a significant change in how USCIS has treated “Duration of Status” in the past:
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:
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:
Accruing unlawful presence can prevent an individual from being able obtain a change of status to another visa category while in the United States or obtaining a new visa at a US Embassy or Consulate. It can also prevent an individual from obtaining US Residency (green card). It is very important that international students and exchange visitors understand this new guidance and confer with their immigration attorney regarding any questions.
For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or LDEAL@fmglaw.com.