Immigration Lawyer Blog
In this video we cover a new USCIS policy that can have devastating consequences on students who overstay their duration of stay in the United States, or otherwise violate their status. This new policy will change the way F-1, J-1, and M students, accrue unlawful presence in the United States, for visa holders have violated the terms of their visa by not attending school or engaging in unauthorized employment.
Background
In the year 1996 Congress passed legislation that previously governed how an individual on a non-immigrant visa type such as an F-1 visa, could accrue unlawful presence. Pursuant to this legislation, visa holders who overstayed for more than 180 days, could be subject to a 3-year bar, while visa holders who overstayed for more than one year, could be subject to a 10-year bar.
Typically, individuals who travel to the United States on a non-immigrant visa type receive an I-94 arrival/departure record and a stamp in their passport indicating the length of their authorized stay in the United States. Failure to abide by the duration of stay results in an immigration violation of the terms and conditions of a non-immigrant visa type.
F, J, and M students are unique in that these individuals do not receive a definitive length of stay within the United States, and instead are issued an I-20 (for F students) or DS-2019 (for J students) that denotes their authorized stay as “D/S” or “Duration of Stay,” meaning that the individual’s stay within the United States is not confined by any particular date, but instead depends upon the conclusion of that individual’s program of study or authorized employment.
While students on an F-1 visa type could violate their status by failing to go to school, they could not accrue unlawful presence within the United States because of the D/S designation. This class of individuals could only accrue unlawful status at the time of being apprehension by an immigration official or by court judgment.
New Policy
Beginning August 9, 2018, a new policy will begin to be implemented by USCIS to calculate unlawful presence of individuals in F, J, or M nonimmigrant visa status, and that of their dependents. Pursuant to the new policy memorandum, this class of individuals will begin to accrue unlawful presence the moment they violate their status, regardless of the D/S designation.
This means that students who stop attending school will begin to accrue unlawful presence on the date that they stop attending school and be subject to removal from the United States, in addition to a bar from re-entry depending on the length of the overstay.
This new policy will not apply retroactively.
Be Proactive
Do not wait to consult with an immigration attorney until it is too late. If you are thinking of abandoning your program of study, or if you have engaged in unlawful employment, or otherwise violated the terms or conditions of your non-immigrant visa, you must seek the advice of an experienced attorney as soon as possible before you begin accruing unlawful presence. If you have already violated the terms of your non-immigrant status, you will begin to accrue unlawful presence on August 9th.
Remember that this new policy will apply to all individuals on D/S status beginning August 9th.
If you have any questions please contact us or email jacob@h1b.biz.
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