New Policy Imposes Stiff Penalties for F, J and M Nonimmigrants Who Fail to Maintain Status

Effective August 9, 2018, nonimmigrants in F, J and M status who fail to maintain status will begin to accrue unlawful presence, irrespective of whether there has been an official or formal finding by the Department of Homeland Security on the matter. This is a significant departure from past practice, and one that eliminates a previously held distinction between failure to maintain status and unlawful presence. Nonimmigrant visa holders who accrue unlawful presence may become ineligible for immigrant benefits (such as extension and change of status applications) and may also be subject to bars to readmission to the U.S., including permanent bars.

What This Means for Foreign Nationals

• F, J and M nonimmigrants must be familiar with all terms and conditions of their status to ensure compliance with all applicable laws and regulations. Activities which previously have been deemed status violations (i.e. failure to maintain status) and which may now cause a visa holder to be unlawfully present under the new memo include, but are not limited to, failure to maintain a proscribed course of study, working without authorization, extended and cumulative periods of unemployment during practical training periods, failure to comply with visa/status reporting requirements, etc. This list is not exhaustive. Determining whether an activity or course of conduct gives rise to unlawful presence is a complex and technical matter requiring legal analysis. F, J and M visa holders should confer with their Designated School Officials or program sponsors regarding program requirements, as appropriate, and seek immigration counsel for specific legal advice.
• Nonimmigrants in F, J, and M status who failed to maintain status before August 9, 2018, will start accruing unlawful presence on August 9 unless they had already started accruing unlawful presence on the earliest of any of the following:
  • The day after the Department of Homeland Security (DHS) denied their request for an immigration benefit, if DHS made a formal finding that they violated their 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 Board of Immigration Appeals (BIA) ordered the nonimmigrant excluded, deported or removed (regardless whether the decision is appealable).

• Nonimmigrants in F, J, and M status who fail to maintain status after August 9, 2018, will start accruing unlawful presence on or after August 9, on the earliest of any of the following:
  • The day after they no longer pursue their course of study or authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing their course of study, program or practical training and any authorized grace period (i.e. 60 days for F status, 30 days for J status).
  • The day after their I-94 expires; or
  • The day after an immigration judge or Board of Immigration Appeals (BIA) orders the nonimmigrant excluded, deported or removed (regardless whether the decision is appealable).
• Foreign nationals who accrue more than 180 days of unlawful presence and then depart the U.S. are subject to a 3-year bar to readmission; those who accrue more than 365 days of unlawful presence and then depart are subject to a 10-year bar to readmission.

What to Expect

• The policy is expected to take effect August 9, 2018.
• At this time it is uncertain how the governing agencies will implement the new policy. We will continue to closely monitor issues relating to this new policy and provide updates.
• Foreign nationals in F, J and M status who have any questions regarding their obligations and responsibilities under should consult an immigration attorney.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.