On August 9th, 2018 new USCIS rules about how ‘unlawful presence’ will be calculated for those in student (F), exchange visitor (J), and vocational (M) status in the United States went into effect. USCIS said its goal was to reduce overstay rates of 6.2% for F visas, 3.8% for J visas, and 11.6% for M visas.
How was it before?
Holders of F, J, and M visas issued for the ‘Duration of Status’ (D/S) were considered unlawfully present in the United States only after:
- USCIS formally found a non immigrant status violation (for instance while processing a Green Card application); or
- An immigration judge ordered them removed.
For example, some F1 Student Visa holders admitted under D/S could stay in the United States for years after the end of their studies without being technically considered unlawfully present by U.S. immigration agencies. And when you are not unlawfully present, you are not subjected to ‘bars’.
How is it going to be?
The earliest of any of the following will start the unlawful presence:
- The day after the F, J, or M nonimmigrants no longer pursues 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).
For example, when processing request to adjust status to a family Green Card from F1 visa holders, USCIS will go back in time and retroactively determine when unlawful presence started.
This will also have consequences on dependents of the F, J, or M visas (spouses and children ‘deriving’ their status from the principal visa holder).