Students and Exchange visitors currently present in the United States under F, J, or M visas are more likely to be subjected to a 3-year or 10-year bar from the United States under new USCIS rules that went into effect on August 9th 2018, impacting their ability to travel abroad and to adjust status to a family Green Card.
What happened?
On August 9th, 2018 new USCIS rules about how ‘unlawful presence’ will be calculated for those in student (F), exchange visitor (J), and vocational (M) status in the United States went into effect. USCIS said its goal was to reduce overstay rates of 6.2% for F visas, 3.8% for J visas, and 11.6% for M visas.
How was it before?
Holders of F, J, and M visas issued for the ‘Duration of Status’ (D/S) were considered unlawfully present in the United States only after:
- USCIS formally found a non immigrant status violation (for instance while processing a Green Card application); or
- An immigration judge ordered them removed.
For example, some F1 Student Visa holders admitted under D/S could stay in the United States for years after the end of their studies without being technically considered unlawfully present by U.S. immigration agencies. And when you are not unlawfully present, you are not subjected to ‘bars’.
How is it going to be?
The earliest of any of the following will start the unlawful presence:
- The day after the F, J, or M nonimmigrants no longer pursues the course of study or the authorized activity, or the day after they engage in an unauthorized activity
- The day after completing the course of study or program (including any authorized practical training plus any authorized grace period).
For example, when processing request to adjust status to a family Green Card from F1 visa holders, USCIS will go back in time and retroactively determine when unlawful presence started.
This will also have consequences on dependents of the F, J, or M visas (spouses and children ‘deriving’ their status from the principal visa holder).
Why does unlawful presence matter?
People who are unlawfully present in the United States for more than 180 days (but less than one year) in a single stay (not in the aggregate) are said to be inadmissible because of unlawful presence, and subject to a 3-year bar: once they have leave, they cannot return to the United States for 3 years. In other words, they cannot receive a permanent or temporary U.S. visa (unless they obtain a waiver) or be admitted at a Port or Entry.
Unlawful presence in the United States for 12 months or more triggers a 10-year bar.
What are the consequences for family Green Card applicants who want to go through adjustment of status (Form I-485)?
There are two major consequences from which immediate relatives are exempt:
- Applicants who are unlawfully present in the United States are not allowed to adjust status, and have to switch to consular processing
- Switching to consular processing means leaving the United States, which may trigger 3-year or 10-year unlawful presence bars. If bars are triggered, waivers (either an I-601A waiver from within the United States, or an I-601 waiver from outside the United States) will be needed, which adds a significant step to the Green Card process.
Immediate relatives are still allowed to adjust status when they are out of status and inadmissible because of unlawful presence as they are exempt from these rules. However, applicants looking to adjust status from F, J, or M visa to a Green Card under a family preference classification (F1, F2A, F2B, F3, F4) need to stay in status.
What could be the consequences for traveling in and out of the United States, or family Green Card applications going through consular processing?
Leaving the United States may trigger the 3-year or 10-year bar. The consular officer carrying out an interview at a consulate abroad, or the Customs and Border Patrol officer at the Port of Entry, may find the current or former F, J, or M visa holder inadmissible to the United States because of the 3-year or 10-year bar.
When did the new rules take effect?
August 9th, 2018. For example, F, J, M visa holders under D/S who completed their course of studies or programs in June 2017 are unlawfully present in the United States since August 9th, 2018 (even if they were not notified by USCIS or an immigration judge). They need to depart the United States before February 4th, 2019 to avoid being subject to a 3-year ban.