On May 10, 2018, USCIS announced a draft policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees). The draft policy is slated to become final and effective on August 9, 2018.
In the draft policy, USCIS announced a dramatic change to the treatment of “status violations” by individuals in the U.S. on F, J, and M visas. A status violation is any failure to meet a term or condition of the visa, including unknowing and unintentional technical violations (e.g., lowering one’s course load below a certain number of credit hours, engaging in casual work, accruing too many days of non-work after school completion, etc.). Until now, a status violation has not had a negative effect on the visa-holder unless/until notice is given. The visa-holder is accorded due process including the opportunity to take corrective action and/or to contest alleged violations in filings with USCIS, or in immigration court. Under the new draft policy, status violations will immediately, automatically, and without notice make the individual “unlawfully present” in the United States. Unlawful presence of 180 days or more has serious, often irreversible consequences, including being barred from the U.S. for 3 or 10 years.
This new policy undoes years of law and policy that allow for notice and due process before a bar is applied. Advocates will be challenging this new policy and we will post updates here on the blog.
© Jewell Stewart & Pratt PC 2018