Beginning August 9, 2018, the revised final policy memorandum of the USCIS regarding unlawful stay will go into effect. Below is a brief summary of the revisions and what you need to know in order to avoid accruing unlawful presence.
What is Unlawful Presence and what are the consequences?
Unlawful presence is the term used to refer to time period during which a foreigner is present in the United States after their period of authorized stay has expired. The severity of the penalty depends on the length of unlawful presence, which usually will involve inadmissibility or a ban on the individual from re-entering the United States. For instance, an individual who has accrued more than 180 days but less than 1 year of unlawful presence will be inadmissible, if he or she seeks to return to the United States within 3 years from the date of their initial departure or removal. If the individual has been in unlawful presence for more than 1 year, he or she will be inadmissible from a return to the United States for 10 years. If an individual has an aggregated period of unlawful presence and attempts to re-enter the United States without receiving proper admission from authorities, he or she risks a permanent ban from the United States.
Note: there is a difference between unlawful status and unlawful presence and there are various levels of details involved. The previous paragraph is merely meant to provide an idea of the consequences of unlawful presence and to provide perspective for the policy changes being described below.
What are the changes and what do they mean for you?
The USCIS memorandum states that those who are holders of the non-immigrant visas (e.g. F, J, and M) who timely refile to have their status be reinstated, will not accumulate unlawful presence while their application is pending. Timely refiling means that the individual holding the non-immigrant visa has not been out of status for more than 5 months, when he or she files for a reinstatement of their status. If the individual files his or her reinstatement application within that 5-month period (starting from when his or her period of authorized stay expires), his or her unlawful presence will be suspended (meaning he or she will not accrue unlawful stay) starting when the reinstatement application has been submitted and while the application is pending for a decision.
If the reinstatement application is denied, the individual will begin to accrue unlawful presence the day after the denial. At this point, it becomes the individual’s responsibility to prepare for a timely departure to avoid unlawful presence accumulation.
If the reinstatement application is approved, whether the reinstatement has been timely filed or not, the individual will not accrue unlawful presence.