USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

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August 9, 2018

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The U.S. Citizenship and Immigration Services (USCIS) published new guidance for individuals currently classified under student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status visas. The revised policy changes how USCIS calculates unlawful presence and how this is accrued for students and exchange visitors who fail to maintain their F, J, or M visitor status visas. Unlawful presence accrues any time a nonimmigrant remains in the U.S. beyond the expiration of their permitted stay period. Accruing more than 180 days of unlawful presence may result in a 3-year ban on entering the U.S. in the future.

The revised policy includes the following changes regarding reinstatement applications:

  • F and M nonimmigrants who fall out of status and file for reinstatement will have their unlawful presence accrual suspended while their application is pending with USCIS. Applications are considered timely if submitted within five months of a status violation.
  • If a reinstatement application is denied, the unlawful presence accrual resumes on the day after the denial.
  • F, J, or M nonimmigrants with applications that are eventually approved will be considered under lawful status.
  • A J nonimmigrant will not be considered to have accrued unlawful presence if submitting a request for reinstatement and approved by the State Department.

These policy changes will have no impact on how other nonimmigrant visas are calculated.

Action Items

  1. Review expiration of authorization to work status for applicable employees for appropriate handling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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