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'Unlawful Presence' and International Students

May 14, 2018
 
 

New policy guidance published last week appears to make it easier for international students to accrue “unlawful presence” in the U.S., a change that could have implications for their ability to re-enter the country in the future. Individuals who accrue more than 180 days of unlawful presence before they depart from the U.S. can be barred from re-entering the country for a period of three to 10 years.

The new policy memorandum, published by U.S. Citizenship and Immigration Services and open for public comments through June 11, changes the way international students and exchange visitors on F, J and M visas and their dependents would be found to have accrued unlawful presence beginning Aug. 9. Under the current policy, put in place in 1997, international students and exchange visitors begin accruing unlawful presence only if they overstay a specified departure date, if “admitted for a date certain” or if a formal finding is made that they violated their immigration status or are deportable. Specifically, the current policy holds that international students and exchange visitors begin "accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first."

The new policy guidance, however, holds that international students and exchange visitors could begin accruing unlawful presence the day after they violated the terms of their immigration status, not just the day after the Department of Homeland Security or a judge issued a formal finding of wrongdoing. Specifically, the new policy states that unlawful presence would begin accruing "the day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity."

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