In what immigration attorneys consider a “radical change,” U.S. Citizenship and Immigration Services (USCIS) has announced a new policy that could make it more difficult for foreign students and exchange visitors in the United States to obtain new visas in the future. This policy memorandum (technically titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants”) was publicly released on May 11, 2018, and is slated to take effect on Aug. 9, 2018.
This new policy should NOT affect most spouses of U.S. citizens who came to the United States on a valid visa and now seek a marriage-based green card. That’s because for spouses of U.S. citizens, the marriage green card application process is the same whether they are undocumented because they “overstayed” their visas or whether they have legal immigration status. (Please note that there are additional barriers for spouses of U.S. citizens who entered the United States illegally, and for spouses of U.S. green card holders.)
What does this change mean?
Under U.S. immigration law, there is a distinction between “violation of status” and “unlawful presence.” Basically, “violation of status” refers to an action that breaks the specific rules under which someone is allowed to be in the United States. “Unlawful presence” refers to a period of unauthorized time in the United States that triggers a particular negative consequence: Individuals who were “unlawfully present” for 180-365 days are barred from entering the United States for three years, while those unlawfully present for over a year are barred from returning for 10 years. (These are often called the “three- and ten-year bars” or just the “re-entry bars.”) This can create a major barrier to obtaining a green card, which often requires applying from abroad.
Up until now, most students (on F-1 or M-1 visas) and exchange visitors (on J-1 visas) did not begin to accrue “unlawful presence” until USCIS made a formal determination or a court began deportation proceedings. Under the new policy, however, “unlawful presence” will commence as soon as they violate their immigration status in any way, including but not limited to:
- The day after completing a course of study plus any authorized grace period
- The day after withdrawing from a course of study
- The day after engaging in an unauthorized activity (such as working in the United States without permission)
In some cases, the student or exchange visitor may not realize that they have triggered one of these events until long after the fact, when they attempt to apply for a new visa. That’s why this new policy could create significant uncertainty for those in the United States on F, J, and M visas (including spouses and children). USCIS estimates that in Fiscal Year 2016, nearly 1.5 million people in these visa categories could have been affected.
If you need legal advice on these issues, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you.
Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.