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New USCIS Policy on the Unlawful Presence 3/10 year bar – F-1, J-1 and M-1 visa holders

Posted July 25, 2018 - ByShahzad Ahmed With NeJame Law

Effective August 9, 2018, the United States Citizenship and Immigration Service (USCIS) is implementing a more strict rule for calculating unlawful presence for certain visa holders. These include, F-1 student visas, J-1 trainee visas, and M-1 vocational student visas. This policy change requires such foreign nationals to be extra cautious in abiding by the terms of their visa status.

Background: Traditionally, if a foreign national has been unlawfully present in the U.S. for 180 days, then his departure from the U.S. would trigger a 3 year bar to return. If he has been unlawfully present for 365 days, then his departure from the U.S. would trigger a 10 year bar. Unlawful presence was calculated to begin on the date after the foreign national’s admitted stay on his or her I-94 expired. Those on F-1 and J-1 visas are treated differently since their admission stamp typically reads, “duration of status,” or “D/S,” and were usually not provided a specific expiration date on their I-94. So for those individuals, USCIS policy has been that unlawful presence would not begin accruing until the day after the USCIS decides or an immigration judge enters an order of removal.

New Policy: Effective August 9, 2018, for F-1, J-1, and M-1 visa holders, unlawful presence will begin accruing at the earliest possibility, i.e. when they no longer pursue their approved course of study or training, or when they conduct an unauthorized activity; or a day after the USCIS decides or an immigration judge enters an order of removal, whichever comes earlier.

The effect of the new policy is that if you are in one of the above visa statuses and depart the US, then any unlawful presence will be calculated from the date of the status violation, even if the USCIS or immigration judge has not determined you to be in violation. Thus it is ever more important for visa holders to abide by the terms of their visa status.

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