What Is Unlawful Presence & How Does The Recent Policy Change Affect Its Calculation?

Foreign nationals who are not lawful permanent residents in the United States can accrue unlawful presence (ULP) if they stay in the U.S. after the period of stay authorized by the Department of Homeland Security or if they enter in the U.S. without being paroled or admitted. Accruing unlawful presence can lead to bars of inadmissibility depending on different factors such as the number of unlawful presence days accrued.

Generally, once foreign nationals are paroled or admitted into the U.S. they are issued a Form I-94. This form will show the date on which foreign nationals are supposed to leave. As such, ULP will be accrued after the date specified on the Form I-94.

Previously, F, M and J nonimmigrants on the D/S status did not accrue ULP if they overstay unless an immigration judge or the USCIS makes a formal finding of status violation. However, under the new policy changes, which went into effect on August 11, 2018, accrual of ULP occurs the day after the expiration of the authorized status of the F, M or J nonimmigrant.

Policy Changes Applying To Academic Student (F), Exchange Visitor (J) and Vocational Student (M) Status

The USCIS initially published a policy memo that proposed policy changes to how accrual of ULP is determined for nonimmigrants on the F, J, and M status on May 10, 2018. After going a 30-day public comment period which ended on June 11, 2018, the revised final policy memorandum was published on August 9, 2018. The policy changes also went into effect the same day. According to these policy changes, F, J and M nonimmigrants who fall out of status will start accrual of ULP the day after.

Earlier in May, the policy memo posted by the USCIS offered changes to the calculation of ULP for nonimmigrants on the academic student (F), exchange visitor (J) and vocational student (M) status. According to the proposed changes, accrual of unlawful presence begins the day after the applicant falls out of status. The final memo revises upon changes made in the earlier policy memo. With the revised policy memo, for F and M nonimmigrants, counting of ULP is suspended while the application is pending if the F or M nonimmigrant who fell out of status timely filed for a reinstatement of that status (i.e. if the applicant has not been out of status for more than five months when he or she filed for a reinstatement of that status). If the reinstatement of the application is denied then unlawful presence recommences the day after.

The revised version published in August supersedes the earlier policy memo posted in May. These new policy changes also affect the spouses and children of F, J, and M nonimmigrants.

According to the USCIS, these changes are to reduce the number of overstays in the F, J, and M visa categories. The FY 2017 Entry/Exit Overstay Report shows that overstay rates fell in FY2017. According to the USCIS, however, since overstays in the F, J, and M categories are higher than those in other nonimmigrant categories are; there is a need to change the calculation of ULP in those categories.

Failure to Maintain Status before August 9, 2018

A nonimmigrant under the F, J, or M status who falls out of status before August 9, 2018, will accrue ULP starting August 9, 2018, based on this failure. However, counting of ULP is suspended while the application is pending if the F or M nonimmigrant who fell out of status timely filed for a reinstatement of that status (i.e. if the applicant has not been out of status for more than five months when he or she filed for a reinstatement of that status). However, the individual may have already begun accruing ULP depending on the following conditions:

• If the DHS had already formally found a status violation by the nonimmigrant while adjudicating a request for another immigration benefit and the DHS denied that request for the immigration benefit, then ULP accrual started the day after the denial of the request.
• If the nonimmigrant was admitted for a date certain, then ULP accrual started the day after the expiration of the Form I-94; or
• If a judge ordered the deportation, removal or exclusion of an F, J, and M nonimmigrants (regardless of if the nonimmigrant appeals the decision or not), then accrual started the day after.

Failure to Maintain Status On or After August 9, 2018

A nonimmigrant under the F, J, or M status who falls out of status on or after August 9, 2018, will begin to accrue ULP on the earliest of the following conditions:

• The day after which the nonimmigrant student completes a course of study, including a period of authorized practical training and any additional grace period.
• If the nonimmigrant was admitted for a date certain, then the day after the Form I-94 expired;

• The day after which the nonimmigrant student stops pursuing the course of study or authorized activity. Likewise, the day after which the nonimmigrant student engages in an unauthorized activity under the status; or

• If a judge ordered the deportation, removal or exclusion of an F, J, and M nonimmigrants, then the day after the order.

However, counting of ULP is suspended while the application is pending if the F or M nonimmigrant who fell out of status timely filed for a reinstatement of that status (i.e. if the applicant has not been out of status for more than five months when he or she filed for a reinstatement of that status).

The USCIS uses Information found in the systems available to USCIS such as the Student and Exchange Visitor Information System (SEVIS) to determine ULP, data found in the foreign national’s record, and information got from Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if applicable. The applicant, however, will be granted the chance to refute the information provided in the Student and Exchange Visitor Information System.

Exceptions for Accrual of Unlawful Presence

Not every foreign national accrue unlawful presence. The following persons do not accrue ULP.

• Minors
• Asylum seekers
• Beneficiaries of Family Unity Program
• Trafficking victims

Consequences of Unlawful Presence

In accordance to the Immigration and Nationality Act (INA), an alien who is not a permanent resident (Green Card holder) of the U.S. might be inadmissible for 3  years, 10 years or even permanently, if they overstay pass the authorized period of stay authorized by the DHS.

• If the person has accrued more than 180 days of ULP during a singular stay in the U.S., the person may be inadmissible for 3 years.
• If the individual accrues over a year of ULP on a singular stay, the foreign may be inadmissible for 10 years.
• If the person accrues more than a year of ULP on a single stay or multiple stays, the individual may be inadmissible permanently.

During the inadmissibility period (which begins as soon as the inadmissible individual leaves the U.S.):

• The individual cannot obtain a permanent residence visa or a temporary (nonimmigrant) visa from the U.S.;
• The individual is ineligible to adjust a nonimmigrant status to a permanent residence status;
• In addition, the individual cannot be admitted to the U.S. at a port of entry.

Persons affected by the three-year and ten-year unlawful presence bars can be admitted entrance to the United States and/or obtain a visa if they apply for and obtain a waiver of inadmissibility first.

While the inadmissibility is permanent, an applicant can seek permission (consent to reapply for admission) to reapply to enter the U.S., if the applicant has not been inside the U.S. for 10 years or more since he or she departed the United States. This application can either be accepted or denied. If it is denied, the applicant will remain barred.

If an applicant is affected by a ULP bar, the person usually cannot receive a permanent residence visa or a temporary (nonimmigrant) visa, adjust his or her visa status, or be admitted to the U.S. at a port of entry unless the applicant applies for and receives a waiver. The immigration benefit the applicant is seeking can exempt the applicant from the consequence of a ULP bar. The availability of a waiver thus depends on the benefit sought.

If you believe you qualify for a waiver, it is essential to acquire legal advice before proceeding.

Sources

• USCIS. (2018). Unlawful Presence and Bars to Admissibility. Retrieved August 11, 2018

• USCIS. (2018). USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors. Retrieved August 11, 2018

• USCIS. (2018). Policy Memorandum: Accrual of Unlawful Presence and F, J, and M Nonimmigrants. Retrieved August 14, 2018