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New Immigration Rules for Students: Unlawful Presence & Re-Admission into the US

USCIS announced harsh new rules for students and exchange visitors to take effect August 9, 2018.  The new rules change the way unlawful presence is determined for those in F, M, and J status.

What are the Rules for Re-Admission to the US if a Person Has Accrued Unlawful Presence?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created a new ground of inadmissibility based on unlawful presence.  Someone who is unlawfully present in the U.S. for 180 days but less than 365 days, if they leave, is barred from returning for 3 years.  Someone unlawfully present for 365 days or more, if they leave, is barred from returning for 10 years.

The Potential Waiver for Re-Admission

There may be a waiver available in limited situations.  An immigrant visa applicant must have a U.S. citizen or permanent resident parent or spouse to qualify for the waiver. If someone who is subject to the bar returns or attempts to return again illegally, they do not qualify for the waiver.

What Constitutes an “Unlawful Presence”?

The definition of what constitutes “unlawful presence” then is very important.  Extremely detailed analyses of the question have been published elsewhere (see e.g. https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF), but generally, unlawful presence automatically begins to accrue from the expiration of the applicant’s authorized period of stay.

Those in F, M, or J status are often not admitted until a fixed date, but rather are admitted for “duration of status,”  “D/S,” meaning that so long as they comply with the terms and conditions of the status, they are lawfully present.

Up to now the rule has been that those admitted D/S did not begin to accrue unlawful presence until an official finding was made by the appropriate authority such as a USCIS officer that the person failed to maintain status, and in that event unlawful presence began to accrue from the time of that finding; it was not counted retroactively to the date the violation of status occurred.  In the case of students, for example, a status violation could include events such as failing to attend the school program for which they were admitted, or dropping below the required number of credits.

New Rules for F, J, M Visas

As of August 9, 2018, that will no longer be trueThe new interpretation states that unlawful presence will automatically begin to accrue starting on the day after the date on which the status was violated.  For those admitted “D/S” in F, J, or M status who are already in the U.S. before August 9, 2018, they will begin to accrue unlawful presence as of that date.  If they already were found previously to have violated their status, and so already began accruing unlawful presence as of the earlier finding, they will continue to accrue unlawful presence as of that earlier date.

Determining When a Status Violation Occurred

In determining whether or when a status violation occurred, the memo instructs USCIS to consider information available to it in the systems to which it has access, information contained in the person’s A file, and information obtained through a response to a Request for Evidence or Notice of Intent to Deny.

Note that dependent spouses and children in F2, J2, or M2 status are dependent on the principal person, and so will also begin to accrue unlawful presence at the same time as the principal.  However, a dependent spouse or child may also begin to accrue unlawful presence due to their own actions that may violate their status directly.

NOTE TO BE CAREFUL ABOUT ADVANCE PAROLE.  The unlawful presence bars do not kick in unless the person leaves the U.S.  Someone who has an adjustment of status application pending is not accruing unlawful presence as of the time the adjustment application was received by USCIS.

However, it is very easily possible that person accrued unlawful presence prior to filing for adjustment.  For example, a student who dropped out of school now will begin accruing unlawful presence as of the next day.  If that student then marries a U.S. citizen and applies for adjustment more than six months after dropping out of school, that student accrued more than six months of unlawful presence from the student status violation to the filing of the adjustment.

Now if that adjustment applicant were to leave the U.S. on advance parole, he would become subject to the bar.  Note, however, that he will have been paroled into the U.S. upon his return, and therefore is not re-entering or attempting to re-enter illegally.  The significance is that he is subject to the bar, but may be able to apply for a waiver.  Clearly, the safest route in that situation would be not to leave, even if otherwise eligible for advance parole.