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USCIS Updates Guidance on Unlawful Presence Accrual for F, M and J Nonimmigrants

17:53 14 August in News Updates
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USCIS Updates Guidance on Unlawful Presence Accrual for F, M and J Nonimmigrants

U.S. Citizenship and Immigration Services (USCIS) has issued revised and final guidance on the accrual of unlawful presence for students and exchange visitors. The memo issued August 9, 2018 updates the guidance issued on May 10, 2018 regarding the accrual of unlawful presence for F, M and J nonimmigrants. The new guidance is effective as of August 9, 2018, and supersedes prior memoranda.

The major change from the memorandum issued on May 10, 2018 is that if a student who is out of status timely files an application for reinstatement, the accrual of unlawful presence will be suspended while the application is pending adjudication. A request for reinstatement will be considered timely as long as the student has not been out of status for more than five months at the time of filing.

This change is important, as it offers the student a chance to explain their situation and receive substantive consideration of their circumstances, rather than facing immediate risk of being placed in removal proceedings under USCIS’ Notice to Appear Policy (which at the time of this writing is temporarily suspended).

If the request for reinstatement is granted, the student’s status is reinstated retroactive to the violation date, and no unlawful presence will have accrued.

If the request for reinstatement is denied, the accrual of unlawful presence resumes on the day after the denial.

For additional information on this issue, please see our prior update Major Change for F, M and J nonimmigrants: USCIS Changing Policy on Accrual of Unlawful Presence, or reach out to your LAC attorney.

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