Mayer Brown’s DC-based litigation team secured a victory when The Middle District of North Carolina issued a nationwide injunction barring the government from applying a 2018 policy memorandum released by the US Citizenship and Immigration Services, which purported to fundamentally alter how “unlawful presence” is calculated for the more than a million people present in

On May 10, 2018, USCIS issued a Policy Memorandum entitled “Accrual of Unlawful Presence and f, J, and M Nonimmigrants,” providing new guidance to USCIS officers in the calculation of unlawful presence of students, vocational students, and exchange visitors who remain in the US beyond their authorized period of stay. The Memo is a departure


In a recent analysis of the Student and Exchange Visitor Information System (SEVIS)—the Department of Homeland Security (DHS) system used to monitor academic students (F-1), vocational students (M-1) and exchange visitors (J-1)—DHS determined that of the nearly 1.5 million students and exchange who were either expected to change status or depart the United States in FY 2016 there was an estimated overstay rate of 6.19% for F-1s, 11.60% for M-1s and 3.80 % for J-1s.  These figures were included in a report to Congress along with overstay data for other nonimmigrant categories and a game plan for reducing these figures, the centerpiece of which is a new biometric exit verification capability to be implemented by US Customs & Border Protection (CBP).

Last week, US Citizenship and Immigration Services (USCIS) took another step in the overall DHS effort to reduce the rate of overstays with a focus on the student and exchange visitor populations. By memorandum dated May 10, 2018, USCIS 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 or otherwise violate the terms of their status.  Under the Immigration and Nationality Act, a foreign national who remains six months or one year beyond his or her authorized period of stay faces a bar to reentry of three or ten years, respectively, following departure from the United States.   The issue of calculating unlawful presence for students and exchange visitors arises because foreign students and exchange visitors have historically been admitted, not until a date certain, but for the duration of their academic or training programs, designated on the Form I-94 (arrival/departure record) as duration of status or “D/S.”


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