On August 9, 2018, the United States Department of Homeland Security issued a Policy Memorandum to provide guidance to United States Citizenship and Immigration (USCIS) adjudicating officers in the calculation of what constitutes “unlawful presence” for persons with student visas. This is significant because if an alien has more than six months of “unlawful presence,” that alien is subject to a bar on entry to the U.S. for a period of three (3) years and if the alien has more than one year of “unlawful presence,” then the alien is subject to a bar on entry for ten (10) years. That means that an alien will not be permitted to enter the U.S. if he or she has such unlawful presence. However, the most curious thing about this Policy Memorandum is that the alien may not know of the bar to entry until he or she actually seeks to reenter the U.S.
In particular, previous policy was that an alien started accruing unlawful presence on that day after USCIS formally found a nonimmigrant status violation. In such case, the alien was fully informed of the fact that unlawful presence started accruing. However, the new Policy Memorandum now provides that the alien begins accruing unlawful presence upon the date that such alien fails “to maintain their nonimmigrant status.” This date would be the date, for example, that an F-1 student fails to register for classes at the university or college which he or she was attending. As stated in the Policy Memorandum, “an F, J, or M nonimmigrant may fail to maintain status if he or she no longer is pursuing the course of study or the authorized activity before completing his or her course of study or program, or engages in an unauthorized activity.” Therefore, if an F-1 student simply does not register for classes for one or two semesters or, works without authorization, then that F-1 student may suddenly be subject to the 3 or 10-year bar without knowing.
It should be noted that on February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the effectiveness of the Policy Memorandum, holding that the memorandum is invalid so, for now, the Policy Memorandum is ineffective.