New Unlawful Presence Rule

August 16, 2018

Philadelphia immigration lawyers advise clients about the new unlawful presence rule.On August 9, 2018, the Trump administration will begin cracking down on students who violate the terms of their temporary F-1 or J-1 visas. A new guidance has been issued that will apply a harsher standard to students than those that apply to tourists in the United States for business or pleasure. It is also stricter than the standard that applies to workers and executives. Under the new guidance, unintentional failures to comply with the strict terms of their visas could result in serious consequences.

This guidance was issued in furtherance of an Executive Order. The underlying goal is to reduce the number of individuals who overstay their visas. Any failure to comply with the guidelines for an F-1 or J-1 visa could result in an unlawful presence status, and bar an individual from returning to the United States between three to 10 years.

Students who come to the United States from abroad are permitted to stay for the duration of their status. This means that they can stay for the time designated as necessary to finish their studies. For nearly 20 years, it has been the policy that the day after the U.S. Citizenship and Immigration Services officially find that a student has outstayed their visa, or otherwise orders deportation, then from that day forward they are deemed to be of unlawful presence. If that person stays in the U.S. with unlawful presence status for 180 days or less after the judge’s decision, then they cannot return to the United States for three years. If they stay for one year after the decision, then they are banned from the United States for a full decade. However, now, things will be different.

Visa Overstay

Unlawful presence begins to accrue the day after a student no longer pursues the study that they entered the country for, or the day after engaging in unauthorized activity. This rule also applies to the children and dependents of students in the U.S. on an F-1 or J-1 visa.

The net effect of this change is that now, individuals who stay beyond their visa or inadvertently stopped their course of study, begin accruing unlawful presence status immediately. There is no need to wait for a judicial determination to trigger the period. The net effect is that more people will be barred from the United States for 10 years as opposed to three. There is no way to avoid the automatic three to five-year ban.

If a student fails a course, putting them below 12 credits per semester, then they may begin accruing unlawful presence status. There are exceptions for medical reasons, among other circumstances. Other unauthorized activities include attending a school other than the school the student was initially authorized to attend without prior approval, or working on campus for more than 20 hours per week during spring and fall semesters.

Philadelphia Immigration Lawyers at the Law Offices of MC Law Group, LLC Help Clients with All Types of Visa Issues

The Philadelphia immigration lawyers at the Law Offices of MC Law Group, LLC are dedicated to helping our clients achieve their dreams. If you have questions or concerns about student visas, dependents, relatives abroad, criminal charges, immigration, or naturalization, we can help. We provide free, no-obligation consultations from our offices located in Philadelphia. Call us today at 215-496-0690 or contact us online to set up your free, confidential consultation.