In a policy memorandum dated May 10, 2018, the United States Citizenship and Immigration and Services (“USCIS”) provided new guidance to its officers and adjudicators on calculating unlawful presence for nonimmigrants in F, M, and J status. This policy memorandum, which becomes effective on August 9, 2018, represents a dramatic shift in long-standing USCIS policy.

The date unlawful status begins to accrue is extremely important as this date is a linchpin in determining when the 3-year and 10-year bars of reentry may apply.  Generally, unlawful status for more than 180 days, but less than 1 year, triggers a 3 year bar of reentry, while unlawful status for more than 1 year triggers a 10 year bar. Waivers of the bars may be available if certain requirements are met, including in some cases extreme hardship to a U.S. or permanent resident spouse or parent.

The new policy specifies that F, M, or J nonimmigrants who failed to maintain their status (for example by no longer pursuing a full-course of study, no longer engaging in an approved training program or activity, or engaging in unauthorized employment) before August 9, 2018, will start accruing unlawful status on August 9, 2018, unless the nonimmigrant already starting accruing unlawful status on the earliest of the following:

  • The day after a Department of Homeland Security (DHS) denial of an immigration benefit, if DHS determines that the nonimmigrant violated his or her nonimmigrant status while adjudicating that immigration benefit;
  • The day after the nonimmigrant’s Form I-94 expires, if the F, M, J nonimmigrant was admitted until a certain date; or
  • The day after an immigration judge or the Board of Immigration Appeals ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

F, M, or J nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, begin accruing unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or the Board of Immigration Appeals orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The new policy is a dramatic change in how USCIS previously calculated unlawful presence.  Under the prior policy, unlawful presence for those in admitted F, M,  or J status for the duration of their status (D/S) started accruing only on the day after:

  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.

F, M, or J nonimmigrants who were admitted until a specific date, instead of D/S, accrued unlawful presence only on the day after:

  • Their Form I-94 expired;
  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This new policy also affects the immigration status of dependent family members as the validity of their status is dependent on the principal maintaining his or her status.

To review the text of USCIS’ new policy memorandum, please click here.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

The Trump Administration may be moving towards revamping the J-1 exchange visitor program in ways that could be detrimental to universities, research organizations, businesses, hospitals, healthcare, families, and students.  J-1 nonimmigrant (temporary) visas are issued to: foreign students, scholars, researchers, postdocs, college work/study participants, medical students/residents/doctors, interns, trainees, au pairs, and more.  As part of his campaign’s immigration reform outline, President Trump singled out J-1 work/study programs, stating that he would terminate these programs and replace them with programs aimed at employing inner city youths in these part-time, limited duration (usually seasonal) minimum wage jobs.  While the Administration has been silent on changes to any of the J-1 programs thus far, some of our J-1 sponsor clients have received an email from a high-ranking State Department official hinting at what may be on the horizon for all J-1 programs.  The email references the appearance of “emerging Administration policies and themes”, which is causing the State Department to consider steps to ensure that the programs achieve the following objectives: 

  • Alignment with National Security
  • Asserting U.S. Leadership & Influence
  • Fostering Economic Opportunity for the American People
  • Ensuring Effectiveness and Accountability to the U.S. Taxpayer

Other than the email, the State Department has not commented publicly about the future of the J-1 program.  We will continue to monitor any proposed changes to the J-1 program and post on our blog.

The President’s Executive Order, commonly called the “travel ban”, has raised many questions.  We answer the most frequently asked questions below, and will update them as additional information becomes available.

I am from one of the named countries and am outside of the United States.  Can I apply for a nonimmigrant (temporary) or immigrant (permanent) visa at a US consulate?

On January 27, 2017, the U.S. Department of State (DOS) provisionally revoked most valid nonimmigrant and immigrant visas issued to nationals from the seven countries subject to the travel ban. Certain diplomatic and other visa categories are exempt from this action. This move was largely symbolic since individuals subject to the travel ban are not permitted to enter the United States. However, if and when the travel ban is lifted, individuals from the listed countries would most likely need to reapply to a U.S. consulate abroad for a new visa before they could travel to the United States.

Continue Reading Travel Ban FAQs

The fast pace of immigration developments under the new Trump administration continues. The following are some of the issues that are most important to individuals and businesses in the United States: Continue Reading DHS Clarifies Policies Affecting Travelers and Applicants, As Details of Possible New Executive Orders Emerge

On August 11, 2010, the State Department published its final revised rule on J-1 Interns and Trainees.  The revised rule makes 3 key changes.  First, host companies no longer must provide a Dun & Bradstreet report  Second, program sponsors may interview candidates by phone rather than only in person or by videoconference.  And third, both interns and trainees may participate in unlimited J-1 programs as long as they will develop more advanced skills or train in a different field of expertise in each new program.  Interns must still be enrolled full-time in a foreign college or university or have graduated within the 12 months just preceding the new J-1 program.  Trainees (and interns who do not meet the preceding criteria) must reside outside the United States for at least 2 years before they are eligible for any additional J-1 program.