Revised Final Policy Memo on “Unlawful Presence for International Students”


Today, the USCIS published a final revised policy memorandum related to the calculation of unlawful presence for international students in the F, M and J visa categories.  Under this revised final policy memo, effective 8/9/2018, international students and exchange visitors who fall out of status and timely file for reinstatement will have their accrual of unlawful presence suspended while their reinstatement application is pending.

How to timely file a reinstatement application?

If you last entered the U.S. as a F or M student or J exchange visitor and for whatever reasons that you are or will be out of status, you should file for an reinstatement application within 5 months of you being out of your status.  Once you filed for an reinstatement, the unlawful presence will be suspended while the application is pending with the USCIS or Department of States (for J visa exchange visitors).

What if I’m out of status beyond the 5 months window?

Under the new policy memo, if you are out of status or overstayed your student visa longer than 5 months and you have not filed an reinstatement application or do not have any other pending visa applications, you are deemed to be out of status and have accrued unlawful presence.  If you file for a reinstatement application and it is ultimately approved, you will generally not accrue unlawful presence while out of status.  However, if your reinstatement application is denied, the accrual of unlawful presence will resume on the day after the denial.

What happens if I timely filed a reinstatement application but it’s still pending after 5 months?

In that case, according to the revised final policy memo, your unlawful presence is suspended meaning you are still in status as long as your application is pending.

Do I have to leave if my reinstatement application is denied?

If your reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.  To avoid accruing more unlawful presence that could lead you to a bar to return to the U.S. in the future, you should depart the U.S. immediately.

When does this policy memo becomes effective?

August 8, 2108.

When should I seek help from an immigration lawyer?

The accrual of unlawful presence is a serious matter because it will potentially prohibit you from returning to the U.S. either temporary or permanently.  If you are in such a situation, you should seek help from an experienced immigration lawyer before departing the U.S.  Depending on your situation and immigration history and future plans, there might be immigration options for you to return to the U.S. such as an inadmissibility waiver or I-601 waiver.  Contact the Cipolla Law Group to schedule a consultation and find out how we can assist you to return to the U.S.  Our immigration law firm is located in downtown Chicago and we can assist you either in person at our office or over the phone.

 


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