USCIS aims to restrict F1, J and M visas after H1B with stricter rules

USCIS announced a policy change to the way Academic student (F-1), vocational student (M-1), and exchange visitor (J-1) and their dependent (spouses and children) accrue unlawful presence.

The new policy will change how “unlawful presence” is calculated starting Aug 9, 2018.

What can happen if you have ‘Unlawful presence’?

Unlawful presence Before Aug 9, 2018 - F, J, or M non-immigrants Status

F, J, or M non-immigrants who failed to maintain their non-immigrant status before August 9,
2018 start accruing unlawful presence based on that failure on August 9, 2018, unless you
had already started accruing unlawful presence on the earliest of the following:

  1. The day after DHS denied the request for an immigration benefit, if DHS made a formal
    finding that the alien violated his or her non-immigrant status while adjudicating a request
    for another immigration benefit;

  2. The day after the Form I-94, Arrival/Departure Record, expired, if the F, J, or M non-immigrant was admitted for a date certain; or

  3. The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) ordered the alien excluded, deported, or removed (whether or not the decision is appealed).

Unlawful presence ON or AFTER Aug 9, 2018 - F, J, or M non-immigrants Status

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his
or her status on or after August 9, 2018, on the earliest of any of the following:

  1. The day after the F, J, or M nonimmigrant no longer pursues the course of study or the
    authorized activity, or the day after he or she engages in an unauthorized activity;

  2. The day after completing the course of study or program (including any authorized practical training plus any authorized grace period; or

  3. The day after the Form I-94 expires, if the F, J, or M non-immigrant was admitted for a date certain; or

  4. The day after an immigration judge or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).

USCIS major change to Unlawful Presence policy

Under USCIS new policy, the day after an event that is considered by the agency to be a violation of F, M, or J status in most cases will now be the starting date for calculating unlawful presence.

Example

F-1 student with duration of status had permission to work on campus for 20 hours per week while school was in session. If the student ever worked more than 20 years on record, this will cause him to cause a violation.

This can result in immediate start of unlawful presence accumulation under the new policy.

The same ‘Unlawful presence’ time will be added to dependents name too.

H1B and other visa unaffected

This new policy only affects the F, M and J category visas and their dependents.