The U.S. Citizenship and Immigration Services (USCIS) published a revised final policy memorandum (PM) regarding the unlawful presence for students and exchange visitors. USCIS issued the final PM after a 30-day public commenting period, which ended June 11, 2018.
The revised final PM is effective August 9, 2018. Under this PM, students (F nonimmigrant) and vocational students (M nonimmigrant) will have their accrual of unlawful presence suspended while their application is pending when they fall out of status and file for reinstatement of that status in a timely matter.
There are two ways for a nonimmigrant to calculate his or her unlawful presence accrual:
- If an individual is in unlawful presence already, it started August 9, 2018
- If a nonimmigrant individual is in lawful presence on August 9, 2018, but then falls out, it starts when he or she falls out
The revised final PM follows a May 10, 2018 PM that changed how USCIS would determine unlawful presence of individuals who were either in student, vocational student or exchange visitor status. The August 9th, 2018, PM supersedes that May 10th, 2018 PM.
New Policy Changes
According to USCIS, a timely reinstatement application for F or M status is when a student hasn’t been out of status more than five months when he or she files. The revised and final PM states the accrual of unlawful presence is suspended when a F or M nonimmigrant individual files a reinstatement application during the five month period and even when the application is pending.
The accrual of unlawful presence will resume the day after a reinstatement application is denied (if it is). As such, the nonimmigrant individual may have to voluntarily leave the U.S. to avoid accruing additional unlawful presence.