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ResourcesVisa & Immigration LawUS Immigration LawChanging Rules on Overstay and Unlawful Presence in the USA

Changing Rules on Overstay and Unlawful Presence in the USA

Transcript of the above video:

As the title of this video suggests we are discussing some changes that are coming down the pipe with respect to unlawful presence, overstay and duration of status in the United States. In another video on this channel we specifically discuss "Duration of Status" at some length so go and check out that video to get some more in-depth information about how Duration of Status operates. 

Suffice it to say for this video, basically in certain visa categories specifically visas like the F, the J and the M category US visas, an individual can be admitted into the United States in what is called "duration of status" which basically the individual is admitted, for example in F-1 status, student visa, to attend a course of study in the United States but due to the way the course is set up, just sort of the general statutory expedient or maybe an apprenticeship or practicum, it is difficult to delineate the exact moment  one's course of study ends.

Oftentimes when looking at this from a practical standpoint, it is fairly easy to see in a broad sense, well it kind of that month but you cannot designate it down to a day that it ended and for that reason  or it's very difficult to designate it down to an exact day or date that an individual discontinued their course of study. In the past, duration of status was this statutory expedient, for lack of a better word, or regulatory expedient that was created where an individual was just admitted in because you can't tell exactly when they have to leave. If you are admitted into the United States in a tourist visa for example there is a clear date at which you need to leave the United States. Failure to do so will result in the accruing of unlawful presence and the accruing enough unlawful presence could result could result in a finding of legal inadmissibility from returning to the United States because that individual is found to have overstayed in the United States and subsequent travel to the United States will be barred.  But in duration of status, this statutory expedient was created because it was simply, I think it was simply too difficult especially using older technology, to exactly delineate at what point an individual's course of study or an individual's exchange visitor event had come to a conclusive end and the apparatus could begin at that point formulating exactly how much unlawful presence was being accrued from that point forward. In the past, again this was something that was often found, I think, rather annoying by folks who work in the immigration apparatus, in the visa adjudication apparatus, because you could often have people who, for lack of a better term, somewhat abused the system by being in the United States for prolonged periods of time, really not for any particular lawful reason but because they were admitted in "duration of status" one simply could not begin accruing overstay so an overstay bar could not be levied against that individual because there was no point at which the clock would start with respect to calculating up how much time that individual or individuals had overstayed; that is coming to an end.

This is from uscis.gov. The title of this is, “USCIS Changing Policy on Accrued Unlawful Presence by Non-immigrant Students and Exchange Visitors”. Quoting directly "US Citizenship and Immigration Services, USCIS today posted a policy memorandum changing how the agency will calculate unlawful presence for students and exchange visitors on F, J & M nonimmigrant status including F-2, J-2 and M-2 dependents who fail to maintain their status in the United States. USCIS is dedicated to our mission of ensuring the Integrity of the immigration system. F, J & M non-immigrants are admitted to the United States for a specific purpose and when that purpose has ended, we expect them to depart or to obtain another lawful immigrant status" said USCIS Director L. Francis Cissna.  The message is clear. These non-immigrants can overstay their periods of admission or violate the terms of admission and stay illegally in the US anymore. Quoting further "Individuals in F, J or M status who fail to maintain their status on or after August 9th, 2018, so that is a red letter day, August 9th, 2018, will start accruing unlawful presence on the earliest of any of the following:

-          The day after they no longer pursue the course of study or the authorized activity or the day after they engage in an unauthorized activity; that is some pretty telling language.

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

-          The day after the I-94 expires or the day after an Immigration Judge or in certain cases the BIA orders them excluded, deported or removed, whether or not the decision is appealed." 

Now a couple of things to take away from this article here, or this press release. Quoting again "the day after they no longer pursue the course of study or the authorized activity".  Again the reason generation of status was created was because it is really hard to delineate that so I am sure upon investigation or through admission by an individual who they say "yeah I quit going to school on this date". Okay now we know but more telling to me is the sub clause noted here. "Or the day after they engage in an unauthorized activity". So I would presume that to be like someone who enters the United States in a student visa and then undertakes unauthorized employment and if you can show the moment that occurred, there is your date where the clock starts running.

I think I am probably going to be doing another video on this probably within the next six to eight months as we actually see this rule implemented. As of the time of this filming this rule has yet to a come into effect; I really am going to be interested in seeing the regulations and the Executive Orders etc. maybe not Executive Orders but regulations that flow from this change in policy because as I said delineating when an authorized activity has stopped or an unauthorized activity has started, those are going to be some finer points that may need to be pulled out when adjudicating these matters but what is interesting and what is clear,  the immigration apparatus is doing its best in the United States to go ahead and clear up these sort of gray areas in order to preclude those from being in the United States unlawfully and engaging in activity that they were not authorized upon entry to engage in.