Immigration law changes often and can be complicated and overwhelming for students studying in this country, exchange visitors, and for families of those students.

Earlier this month, the U.S. Citizenship and Immigration Services (USCIS) posted an updated memorandum changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status. This includes F-2, J-2, or M-2 dependents who fail to maintain their status in the United States.

As defined by the USCIS, F, J, and M nonimmigrants are admitted to the United States for “a specific purpose,” and when that purpose has ended, according to the USCIS, they are expected to depart, or to obtain another, lawful immigration status. Nonimmigrants that overstay their time here in the U.S. will now be in violation of the terms. At the time of admission into the United States, F, J and M nonimmigrants are not given a specific date by which they need to leave on an I-94 record. Although these individuals could fall out of lawful status, the previous guidance stated that without a specific date on the I-94 record, no unlawful presence could be accrued as the result of an overstay beyond the course of study.

The new guidance marks a change in policy, and the accumulation of unlawful presence for F, J and M nonimmigrants will now be tied to the program end-date rather than the I-94 record. As of August 9, 2018, individuals with F, J, and M status that failed to maintain lawful status will begin to accrue unlawful presence in the United States, unless they had already began accruing unlawful presence based on receiving a denial of a request for a benefit from DHS, an I-94 expiration, or an order of deportation or removal has been entered. Individuals that accrue certain periods of unlawful presence and then depart the United States may be subject to a bar to re-entering the United States in the future, and this could eliminate the possibility of future applications for nonimmigrant visas or permanent residence in the United States.

With these changes, it is more critical than ever that students and change visitors in F, J and M status be conscious of their immigration status, know about their program expiration dates as contained on forms I-20 (F and M visas) and DS-2019 (J visas).  These individuals should work with their designated school officials to plan their next steps well in advance of the conclusion of the course of study, so as to avoid any bars to returning.

The immigration law practice at Caplan & Earnest has decades of experience navigating these changing policies and in helping our clients to be positioned and prepared for their futures. If you have immigration-related questions, do not hesitate to contact the immigration law team at Caplan & Earnest.