New US Accrual of Unlawful Presence Policies

As of August 9, 2018, a revised USCIS policy memorandum will change the way in which accrual of unlawful presence in the US occurs. The term accrual of unlawful presence refers to the days of presence in the US, during which an immigrant has engaged in activities that violate the terms of their visa.

As per the new memorandum, USCIS will consider the F, J and M non-immigrant visa holders to be in a period of unlawful presence starting on the day after the terms of the status are violated.

According to USCIS, the new regulations are aimed at combatting overstays in the US. The problem here arises from the nature of F (student visas), J (research scholar) and M (vocational and educational training) visas. The manner in which the duration of the visa is determined differs from other possibilities, which is why the new regulations could be disastrous for foreign students.

What Does the New Policy Mean for Non-Immigrant Visa Holders?
Under federal law, a person that has accrued 180 days of unlawful presence will be barred from entering the US in the coming three years. Whenever the unlawful presence reaches or exceeds 365 days, the bar period will be extended to 10 years.

F, J, and M visa holders often have problems determining when unlawful presence will begin accruing. These complications can lead to life-changing consequences for the visa holders. Most individuals on a visa are admitted to a certain date in the future. Unlawful presence will start accruing after that date. For people on a student visa, the duration isn’t fixed. They are admitted for a period that’s associated with their academic activities in the US (or the amount of time required to complete a vocational or another type of education program). After the arrival of a person who is on a student visa, the academic period could potentially change.

Because of these specifics, the USCIS policy so far has been to have F, J and M visa holders accruing unlawful time after a Department of Home Security (DHS) officer or an immigration law judge concludes that the person is out of status. This meant that the accrual commenced on the day after the individual was informed that they were violating the terms of their visa.

The new policy is putting an end to the practice. As already mentioned, unlawful presence accrual will commence on the day after a status violation occurs, even in cases when the visa holder has no idea that they’d committed a violation.

Another very important thing to keep in mind is that the policy will be applied retroactively. This means that all individuals who violated the terms of their visa before the new policy came in effect on August 9 will also be accruing unlawful presence as of the enforcement date.

A Severe Blow Dealt Against Foreign Students
The new policy is designed to potentially snare thousands of foreign students on an academic program in the US. Many of them will be unaware of the fact that they’ve committed a status violation or that they have commenced accruing unlawful time.

Even if this is the case, the three or 10-year bar will be triggered after the accrual of the respective unlawful time amount.

Very often, violations that occur under a student visa are either technical or minor. Based on the new USCIS final policy memorandum, however, even such insignificant violations will eventually render foreign students and academic scholars inadmissible to the US.

Imagine the following scenario: a foreign student on an F-1 visa is told by their university advisor that their online student record has been extended. The advisor, however, made a mistake and the extension did not occur. Even in such innocent situations, a foreign student will begin accruing unlawful presence from the date on which the mistake was made.

The new rules may also apply to situations in which students begin practical training following the completion of their academic program. If the practical training is not seen as sufficiently related to their degree, the violation of the student visa will become a reality.

It’s even possible for graduate research assistants to be violating the terms of their visa by working longer hours to complete a project before the deadline. If the student is authorized to work only 20 hours per week on campus but they rush and do more, they will also be violating the conditions of their visa and the accrual of unlawful time will begin immediately.