Immigration Law Insights

USCIS has implemented a new Policy Memorandum affecting foreign national students (F-1 and M-1) and exchange visitors (J-1). The memo, "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," became effective on August 9, 2018, and could have a significant effect on nonimmigrants (and in certain cases, immigrants) who hold or have held F, J, or M visa status and who have violated that status since their most recent entry into the U.S. The policy may also impact nonimmigrants who exit the U.S. and who, whether knowingly or not, violated their F, J, or M status and attempt re-entry to the U.S. at a later date.

F, J, and M nonimmigrants are generally granted a period of stay in the U.S. for their "Duration of Status," or "D/S," to allow for the flexible and continuous nature of academic programming (i.e. changing majors/programs or starting a new degree/program). Prior to the memo's effective date, nonimmigrants admitted to the U.S. for D/S generally would not begin to accrue unlawful presence unless an immigration judge or USCIS adjudicator formally determined a status violation had occurred. The unlawful presence "clock" typically started on the date the decision was rendered. With the new policy, the unlawful presence clock may be triggered for purported violations that occurred years ago, which could lead to a high number of nonimmigrants (and their dependents - F-2, J-2, M-2) incurring unlawful presence as of August 9, 2018. The memo is silent on what specific status violations might include. With an array of potential violation triggers, HR professionals, Designated School Officials (DSOs), and Alternate Responsible Officers (AROs), should work closely with counsel and practice due diligence by notifying F, J and M visa holders of the policy change and potential consequences, particularly if the entity routinely sponsors and/or interacts with F-1, J-1 and M-1 candidates. Also, it might be helpful to review the records of F, J, and M visa holders to ensure candidates are not engaging in unauthorized activities which could trigger the unlawful presence bars.