By Dena Wurman, MPA, JD
May 25, 2018
The US Immigration service is tightening its policy on unlawful presence for F, J and M non-immigrant students. This new student unlawful presence rule starts August 2018. The change will automatically trigger unlawful presence for students now considered out of status. Status and presence in immigration law are very different concepts. The distinction between status and presence has important consequences. It determines whether an immigrant has the opportunity to become a permanent resident or US citizen.
Unlawful presence is a term of art used in immigration law. It is the very harsh consequence to an action (or inaction) a student may or may not know is illegal. It describes the nature of staying too long after a student visa ends. Now, unlawful presence starts on the date an officer, judge or an administrative court determines there has been a violation of an immigration law.
When unlawful presence begins, the clock starts ticking. If the time reaches a certain point, and the immigrant eventually departs, there may be a very long wait before the US government permits re-entry to the US.
For example, individuals who have accrued more than 180 days of unlawful presence in the US, and then depart, may be subject to 3-year or 10-year bars to (re)admission. Individuals who depart and re-enter after accruing more than one year of unlawful presence are permanently inadmissible.
OUT OF STATUS
Unlawful presence is distinguished from being “out of status” which currently brings with it no adverse consequences when undetected. A student who overstays a visa is considered to be out of status.
The immigration service calculated in 2016 that between four and 12% of all F, J and M students were overstays in the US, of a total of 1.4 million admitted. This is roughly 175,906 students of the 2016 group measured who were expected to change status or depart.
Before the new change takes effect in August of this year, students (and their dependents) were allowed to stay in the US for “duration of status” or until their I-94 document expired. These students were not considered unlawfully present until there was a formal adjudication – by the immigration service or an immigration judge – which then required them to leave the country.
THE NEW TRIGGER
The purpose of this new rule is to tighten up the previous rule which allowed a minority of students to stay in the US who had no pending immigration matters that could trigger a denial.
When this new rule takes effect August 9, 2018. F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several other scenarios.
WHAT THE EFFECT WILL BE ON GETTING A GREEN CARD
An issue not included in the guidance but one that may impact students is their ability to adust status later in the US.
For example, a student who was an overstay could, prior to August 2018, get a green card as the spouse of a US citizen merely by entering legally (as a student) and overstaying without any adverse legal event occurring. This overstay would be forgiven as an application sponsored by a UC citizen spouse.
Now, beginning on August 9, an overstay will automatically convert to unlawful presence. An unlawfully present immigrant is not eligible for a green card adjustment. This new rule will prevent any number of overstay students now in the US who may wish to later marry a US citizen from getting a green card and becoming US citizens.