By memorandum dated May 10, 2018, U.S. Citizenship and Immigration Services announced a change, effective August 9, 2018, in the way it will calculate periods of unlawful presence in the United States for students and exchange visitors who remain beyond completion of their academic/training program.
Under the new policy the date on which a person begins to accrue unlawful presence is not tied to a definitive notice of a violation or official determination by USCIS or an immigration judge. Students and exchange visitors who for one reason or another have failed to maintain their status will begin to accrue unlawful presence, in some cases unbeknownst to them, on that August 9, 2018.
Therefore, an individual may learn only after the fact that he or she has already accrued months of unlawful presence and is left with no recourse for avoiding the 3- and 10-year bars to admission.
Moreover, under the new policy, the failure of the student or exchange visitor to maintain status results in a finding of unlawful presence for dependent family members over the age of 18 years. Therefore, the dependent family member can suffer significant consequences through no fault of his or her own.
USCIS claims more precise tracking of compliance with academic and training programs is now possible due to technological developments since 1997. USCIS will now rely on the information entered by the school/training sponsor in the Student and Exchange Visitor Information System (SEVIS) administered by Immigration and Customs Enforcement (ICE) to determine the status of students.
The revisions will be reflected in Chapter 40 of the Adjudicators Field Manual.
