Change to “Accrual of Unlawful Presence” rule will make it tougher for employers to hire foreign students or exchange visitors

U.S. Citizenship and Immigration Services (USCIS) are changing how they calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, who fail to maintain their status in the United States.

Accrual of unlawful presence for more than 180 days bars reentry to the United States for three years (10 years if the accrual is for a year or more). However, in the past, a favorable exception to this unlawful presence accrual rule has been applied to F and M non-immigrants (students) and J non-immigrants (participants in an Exchange Visitor program).

As a result, currently, F, J, and M non-immigrants who are out of status (who have left their school or their Exchange Visitor program, or their school or Exchange Visitor program has concluded) generally do not accrue unlawful presence if they were admitted to the United States for Duration of Status (the period a student is pursuing a full course of study, plus any authorized practical training following completion).

The new policy will remove this exception when it goes into effect on Aug. 9, 2018.

For employers, the change in policy means that the ability to employ these individuals could be delayed or impossible if more than 180 days of unlawful presence has accrued.

Currently, because unlawful presence is not being accrued, an F, J, or M non-immigrant could be sponsored by an employer for any eligible work visa category However, as of August 9, if the person has accrued unlawful presence of more than 180 days, he or she will also have to obtain a waiver of the three- or 10-year bar on re-entry to the United States.

See the full news release here. For more information on how this new policy could affect you, speak to our team of experts.

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