1. UC Davis - Services for Students & Scholars
Changes in Unlawful Presence (UP) Policy: Students and Exchange Visitors
UC Davis - Services for Students & Scholars
October 8, 2018

2. New USCIS Policy Memorandum – Effective Aug
New USCIS Policy Memorandum – Effective Aug. 9, 2018 “Accrual of Unlawful Presence and F, J and M Nonimmigrants”
With limited exceptions, Fs, Js, and Ms, will begin to accrue unlawful presence the day after a violation of status which may subject them to a 3 or 10-year bar on returning to the U.S. after they depart the U.S.
- “Unlawful Presence” is a term of art in U.S. immigration law and has always been legally distinct from a status violation
See and-bars-admissibility

3. Prior Unlawful Presence Policy
UP began only when
A date-specific I-94 card expired (rare for Fs and Js)
USCIS determined a status violation in the adjudication of an application or petition
An immigration judge (IJ) determined a status violation in removal proceedings
Fs and Js admitted with “D/S” (Duration of Status) who overstayed their program or violated status did not begin accruing unlawful presence

4. Current Unlawful Presence Policy
Now, Fs and Js (including dependents) admitted with D/S
Who failed to maintain status before August 9, 2018 began accruing UP on August 9, 2018
Who failed to maintain status on or after August 9, 2018 begin to accrue UP on the earliest of the day after:
Failing to pursue the course of study or authorized activity
Engaging in unauthorized activity
Completing the course of study, program, or practical training and any grace period
UP would have begun earlier if:
USCIS or IJ made a formal finding of a status violation
Expiration of date-specific I-94 (rare for Fs and Js)

5. How does the USCIS Assess a Status Violation?
USCIS can consider (but is not limited to) information obtained:
In systems available to USCIS and in an individual’s “A file”
Through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)
By admission of individual (e.g. at USCIS interview)
**These determinations can be complex, nuanced and ambiguous**

6. Major Consequences of Accruing Unlawful Presence 3 and 10-Year Bars From Reentering the U.S. - INA 212(a)(9)(B)
Individuals unlawfully present
For 180 days but less than one year are barred from returning to the U.S. for 3 years
For one consecutive year or more are barred from returning for 10 years
Importantly, these bars are triggered when someone leaves the U.S.

7. Time Not Counted as Unlawful Presence
Generally, UP does not accrue if individual:
Is under 18 years old
Has a timely filed change or extension of status application pending with USCIS
Unclear how long UP is tolled; subject to change
Not protected from UP if denied based on frivolous finding or unauthorized employment
Has an asylum application pending
No unauthorized employment
Is a beneficiary of family unity protection
Is eligible for battered spouse protection

8. Review of New UP Policy and its Impact on Students and Exchange Visitors
For two decades, policy was that Fs and Js admitted in “D/S” began accruing UP only if USCIS or IJ formally found a violation of status
Gave students and exchange visitors the benefit of the doubt
Recognized that students and exchange visitors can mistakenly or unknowingly violate status
Now, students and exchange visitors who fail to maintain status would begin accruing UP the day after the violation occurs and may not be even be aware

9. Unlawful Presence Concerns?
It is advisable to consult with an immigration attorney prior to departing the U.S.
Waivers may be available in both the nonimmigrant and immigrant context
SISS can provide general information and attorney referrals