For the month of September, final action dates for several employment-based visa categories retrogressed. This is hardly surprising as t
On Tuesday, May 11, 2018, the USCIS published a memo that may change how unlawful presence is determined for foreign persons in the F, J, and M status. Scheduled to go into effect on August 9, the USCIS has allowed for public comments up to June 11, 2018.
The USCIS imposes a 3-year or 10-year bar on nonimmigrants who have violated the terms of their status, such as when immigrants who stay in the United States pass their I-94 form's certain date of expiration. Staying passed certain date results nonimmigrants accrue unlawful presence before leaving the United States. The bar is only triggered once the nonimmigrant leaves the United States.
A barred foreign nation can only enter the United States with a waiver. The conditions under which the waiver can be acquired is outlined under INA §212(d)(3) waiver.
However, with F-1, M and J-1 status and their dependents, a designation of duration of status also called D/S is given rather than a certain date of expiration. Under the previous policy, such nonimmigrants did not accrue unlawful presence if they overstayed unless the USCIS or an immigration judge made a formal finding of status violation. The unlawful presence count then started after the formal finding has been made against nonimmigrants admitted for duration of status.
Therefore, after his or her authorized status has expired, a student on an F-1, M and J-1 status did not accrue unlawful presence that can result in a 3-year or 20-year bar.
The new policy, however, will change this as persons in F, J, or M status whose authorized status (including completion of studies and any optional practical training; and the grace period) has expired, will start to accrue unlawful presence the day after the authorized status has expired. Other conditions under which unlawful presence is incurred is further discussed in the article.
As such for nonimmigrants admitted for duration status, the accrual of ULP did not begin on the date when the violation started or the day the removal proceeding stars, but on the date after the immigration judge's order or a date after the USCIS made a formal such as deny a request for an immigration benefit.
Under the new policy, persons in the F, J or M status who are unable to maintain their status starting August 9, 2018, will incur ULP:
However, if any of the following conditions has already occurred before August 9, 2018, then accrual of ULP would have already started on the earliest day after the subsequent conditions-
For an immigrant with an F, J, or M, the ULP would start a day after these conditions have occurred even before August 9, 2018.
Released every month, the USCIS releases a visa bulletin. This bulletin informs immigrant visa applicants if they are qualified to submit the necessary documentation and application. For the month