Proposed USCIS Policy Changes on Accrued Unlawful Presence for J, F, and M Visa Holders To Affect Filipinos

Filipinos working and studying in the United States under the J-1, F, and M nonimmigrant visas should take note of the proposed changes in the manner of calculating unlawful presence by USCIS.

The policy memorandum which was posted on May 11, 2018 s in line with President Donald Trump's Executive Order: Enhancing Public Safety in the Interior of the United States and is set to take effect on August 9, 2018.

The policy amends Section 40.9.2 of the USCIS Adjudicator's Field Manual by adding a section concerning F, J, and M nonimmigrants and the manner of calculating their unlawful presence.

Under the policy memorandum, individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

  • The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

Nonimmigrants holding F, J, or M as well as those who previously departed the United States are strongly advised to consult with a US immigration lawyer to verify their status or to clarify any questions that they may have.


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