USCIS Clarifies Accrued Unlawful Presence Policy

5/14/2018 

On Friday, USCIS clarified its policy for individuals in F, J, and M status who fail to maintain their status. The memorandum expands the terms under which such individuals who fail to maintain status after August 9, 2018 will start accruing unlawful presence. Individuals in F, J, and M status who fail to maintain their status before August 9, 2018 will start accruing unlawful presence on that date on the earliest day that:

1. DHS denies a request for an immigration benefits due to finding a violation of status;
2. Their I-94 expires; or
3. An immigration judge or the Board of Immigration Appeals (BIA) orders the individual excluded, deported, or removed, regardless of whether or not the decision is appealed.

Those who fail to maintain their status on or after August 9, 2018 will start accruing unlawful presence on the earliest day that:

1. They no longer pursue their course of study or authorized activity;
2. They engage in an unauthorized activity;
3. They complete the course of study or program, including any authorized practical training or grace period
4. Their I-94 expires; or
5. An immigration judge or the BIA orders the individual excluded, deported, or removed, regardless of whether or not the decision is appealed.

Individuals who accrue more than 180 days of unlawful presence in a single stay and then depart may be subject to three-year or ten-year bars to admission into the United States based on how much unlawful presence they accrued. Individuals who accrue more than one year of unlawful presence, in a single stay or during multiple stays in the United States, are permanently inadmissible if they reenter or try to reenter without being admitted or paroled.

This policy memorandum updates the USCIS Adjudicator's Field Manual and aligns with President Trump's Executive Order: Enhancing Public Safety in the Interior of the United States, which emphasizes stricter enforcement of immigration laws. USCIS is accepting comments on the memorandum until June 11, 2018. 

If you have any questions, please contact your Goel & Anderson attorney.