F, J, M visas: does the new unlawful presence policy affect me?
One of the most confusing areas of immigration law is the intersection of unlawful presence, the expiry of one’s status, and the 3 and 10 year unlawful presence bars. Matters have become even more complicated following revised DHS Policy Guidance issued in 2018 concerning unlawful presence for F-1, J-1, and M-1 non-immigrant students.
Quite simply, being out of status occurs when a foreign national (FN) either violates the status given to him at entry or overstays the amount of time permitted by CBP. For example, if you are given 6 months to stay in the U.S. by the CBP as a B-2 visitor but leave a day later you have violated your status.
If you are admitted to the U.S. as a F-1 student on Monday but by Wednesday you are working as a waiter at your uncle’s restaurant, you have also violated your status.
You are engaged in “an unauthorized activity” which is not permitted for those who are temporarily in the U.S. to study. It matters not that you may also be attending classes, the status was violated the day you served your first customer. Nor does it matter that a DHS officer did not come to the restaurant and witness you waiting tables. The same would be true if a F-1 student dropped out of school without permission and began to work.
However, not every violation of status makes a person unlawfully present, and this is important to note since it is periods of unlawful presence which count towards the 3 and 10 year bars.
The 3 and 10 year bars and the concept of “unlawful presence” (ULP) have only been tenets of immigration law since the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Congress felt at that time that there needed to be a strong deterrent to those who entered the U.S. without inspection (EWI), had family members here petition for them, and were able to return to their country to apply for an immigrant visa to return as LPRs with no real consequences. Thus the 3 and 10 year bars for unlawful presence were written into the statute as both a deterrent and a punishment for violating U.S. immigration laws, and took effect as of April 1st, 1997 (INA Section 212(a)(9)(B)).
In short, when a foreign national EWIs, overstays “the period of stay authorized by the Attorney General”, or violates the terms of a visa as in the examples above they are generally considered to be unlawfully present (as well as being out of status).
If that period of unlawful presence reaches 180 days the foreign national is subject to a bar to returning to the U.S for 3 years.
If the period of unlawful presence reaches one year, a 10 year bar kicks in.
A third “permanent bar” is triggered if a FN is removed by DHS or leaves of their own accord after a year of ULP and then either attempts to reenter without inspection or is apprehended in the U.S. after doing so. These ULP bars are only triggered when the person departs the U.S.
Non-immigrants in F, J, and M categories are treated differently from other visa holders because they are usually admitted for “duration of status” (the anticipated length of time to complete their studies rather than until a date certain) which in some cases can be several years. The pre-2018 policy was that even if these non-immigrants were in violation of status (for example having an unexcused absence from their program) they would only become ULP if DHS formally determined that there had been a status violation or an Immigration Judge ordered them removed. This accommodation allowed FNs who may have had inadvertent violations of status (such as a school transfer that was delayed through no fault of the student) to avoid the bars and apply for a new visa abroad to cure the status violation and return.
In 2018 DHS announced that this accommodation for F-1, J-1, and M-1 non-immigrants would not be continued after August 9th, 2018 and so these FNs will be considered unlawfully present (and therefore subject to the 3 and 10 year ULP bars) from the day after their status is violated or terminated, or their program (including any grace periods) ends. If the violation occurred before August 9th, 2018 the period of ULP begins on August 9th, 2018.
The only silver lining is that ULP will not be counted during the pendency of a timely-filed application for F-1 reinstatement (asking DHS to place a student back into valid status after they have violated the status). A request is timely-filed if it is submitted within 5 months of the status violation. There is no mention in the memo of unlawful presence being tolled for J-1 students who request reinstatement so we must assume they are not afforded this benefit.
A reinstatement request to DHS can take well over six months to be approved or denied so this is good news for those students, since they would be well into the territory of the 3 year bar by the time a decision is made. If a reinstatement request is approved, the student resumes their F-1 status and any ULP accrued since the status violation is cleared. However, a denial means that the student has accrued ULP for the entire time from the status violation until the day the reinstatement request was denied.
In short, those entering the United States on F,J, or M status need to ensure that they are complying with the terms of their visas so as to avoid a finding of unlawful presence by a violation of any sort. Should these visa holders wish to be able to work in the United States or to obtain Permanent Residency status, we suggest they schedule a consultation to discuss the many options that might be available to them.
By – Alexandre Law Firm