A new policy memo governing accrual of unlawful status is poised to impact students staying in the United States with significant immigration consequences if they fail to comply with new, punitive rules.

On May 10, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum that imposes the definition of "unlawful presence" for those individuals on F, J and M visas (academic, vocational and exchange students and their dependents). This new guidance, which will take effect on August 9, 2018, was introduced pursuant to President Trump's executive order, Enhancing Public Safety in the Interior of the United States. The goal and intent of this executive order is to decrease the number of visa overstays. Upon releasing the May 10 memo, USCIS Director L. Francis Cissna said, "The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore."

Under current (i.e., before August 9, 2018) immigration rules, foreign students and exchange visitors admitted with a specified Duration of Status (D/S) do not accrue unlawful presence if they overstay their departure periods. Instead, unlawful presence only begins accruing on the day after USCIS makes a formal finding of a nonimmigrant status violation while processing a request for another immigration benefit, or on the day after an immigration judge orders the applicant excluded, deported or removed (whether or not a decision will be appealed) - whichever comes first.

Accrual of unlawful status has significant consequences - it can impact a student or exchange visitor's ability to receive future U.S. immigration benefits. Indeed, an overstay can result in bars of U.S. reentry lasting three years, ten years or possibly forever.

New rules accelerate students' accrual of unlawful presence

For foreign students who remain in the United States after their authorized 30 or 60 days of post-optional practical training (OPT) time, or program grace period, or for those who withdraw or drop out of their school or work without authorization, the dates that accrual goes into effect are significantly modified and accelerated by the new policy memo.

Students who fail to maintain nonimmigrant status on or after August 9, 2018 will begin accruing unlawful presence on the earliest of any of the following:

• 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;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
• The day after Form I-94 (arrival/departure record) expires, if the F, J or M nonimmigrant was admitted for a date certain, or
• The day after an immigration judge or, in some cases, the Board of Immigration Appeals (BIA) orders the individual excluded, deported or removed (whether or not the decision is appealed).

For students who do not maintain their nonimmigrant status before August 9, 2018, the accrual of unlawful presence based on his or her failure to comply with maintenance of status commences on August 9, 2018, on the earliest of any of the following:

• The day after the Department of Homeland Security (DHS) denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while processing a request for another immigration benefit;
• The day after the Form I-94 expired, if the F, J or M nonimmigrant was admitted for a date certain, or
• The day after an immigration judge or, in certain cases, the BIA, ordered the foreign student or exchange visitor excluded or removed (whether or not the decision is appealed).

Our legal outlook

USCIS is accepting comments on the new policy memorandum until June 11, 2018. We have no doubt that this memo will be challenged in federal court as a violation of the Administrative Procedure Act. This is because the definition of "duration of stay" has been a settled matter for decades, and the courts may have need to review this definition to assure the legality of this latest move regarding foreign national students.

There has always been a distinction in the immigration regulations between unlawful status and violation of status. One can be in violation of status and not unnecessarily unlawfully present. This is a very disingenuous way to penalize students without their knowledge should they, in error, violate status. It could have deleterious and negative consequences for any future planned activity in the United States.

What this means for schools and employers

In the interim, it would be best if foreign students were apprised of this new policy memo by their designated school officials to assure that they don't run afoul of these new regulations governing stay in the United States. It would also be appropriate for U.S. employers hiring F or J nonimmigrants to assure compliance to prevent foreign students from unknowingly and unwittingly accruing unlawful presence - which could limit their U.S. residence and work opportunities in the future.