Unlawful Presence Policy

In August 2018, USCIS issued a new unlawful presence policy for F-1 and J-1 students. Essentially, the policy memo states that F-1 and J-1 nonimmigrants begin accruing unlawful presence starting from when they violate their nonimmigrant status. This USCIS policy memo also provided new guidance about what constitutes unlawful presence, as well as any exceptions to this rule.

Now, several U.S. colleges and universities are suing the Trump administration over this policy memorandum. Universities including Haverford College and the New School in New York City allege that USCIS violated the Administrative Procedure Act’s formal notice requirements. Moreover, the lawsuit also alleges that the new policy memo is intentionally designed to unfairly punish student visa holders and their dependents, with a potential punishment ranging from a 3-year or 10-year bar on re-entry to the United States. There are an estimated 1.2 million nonimmigrants on F, J, and M visas affected by this policy. The lawsuit is also concerned about the severity of punishment for even minor infractions, such as spelling or typographical mistakes.

This policy memorandum also poses a challenge to students attempting to calculate their accrual of unlawful presence. Unlike other visas, students are admitted for a period of ‘duration of stay’ throughout their authorized studies. This makes it challenging to calculate how much unlawful presence a nonimmigrant has accrued.