A new USCIS policy can have devastating consequences on students who overstayed or violate their
status.
Stay tuned and we'll talk more about this now.
Hello everybody.
My name is Jacob Sapochnick.
And I'm an Immigration Attorney based in San Diego, California.
In this video, we're going to talk about the new UCIS policy coming up August 9, 2018 that
will change the way a students, F-students, J-Students, M Students are considered to be
accruing unlawful presence in the US if they violated their status by not going to school
or working.
So let's start by way of introduction.
So typically in 1996, there was a legislation passed that determined who and how you can
accrue unlawful presence.
So in that legislation, in 1996 they determined that if you overstay your status by more than
180 days, you can be subject to a three year bar.
And if you overstay by more than a year, you can be subject to a tenure bar.
We call this the 3 to 10 year bar.
So they determine a sort of a period of overstay which can subject you to those bars, but students,
those who came on an F Visa or J Visa or an M Visa end, they never had an expiration date.
So typically if you enter the U.S. with an I94, you get a six months stay if you're a
tourist or if you have any other visa, depending on the length of your stay, your I94 determines
that stay.
But student visa students they had a duration of stay, DS which means that there is no determination
as to when their status expire.
So students, there's distinction between violation of status and accrual of unlawful presence.
So those students, while they are violated a status by not going to school, they never
accrued unlawful presence because they had that DS notation.
The only way they could accrue that if they were apprehended by immigration official,
by a judge who determine that at that moment they accrued over presence.
Now all that is going to change on August 9th in the new memo issued by U.S. areas and
that new memo basically will stay that students, even if they have this DS notation on their
passport, the moment they not go to school anymore or violated their status, they're
going to start accruing unlawful presence from that day and they don't have to wait
for a determination.
So from August 9th onwards, such students who are going to start accruing all over presence.
That is now going to be retroactive.
That's only one good thing about this legislation, but everything else is really, really complex
because right now if I'm a student and this is a real case that I'm actually handling
right now.
So a student has been here for let's say 18 years and petitioned by her parent and now
before August 9th, if that person goes to an interview, at that time of the interview,
the officer will determine the unlawful presence and accrual of unlawful presence is going
to start from that date not 18 years ago.
Now, if a person is working illegally, that can be an actual bar for adjustment and that's
a whole different thing, but the essence of accrual of unlawful presence will happen at
the time of that interview when that person will meet the immigration officer.
Now, after August 9th, all this will change because once those students, violated status
by not going to school or their I94 will expire, their I20 will expire then they will be considered
accruing unlawful presence from August 9th onwards.
Now what can students do?
If they are here now, before August 9th they should try to speak with an immigration attorney
to see what they can do facing that change in and the upcoming date because after that
they will be a accruing unlawful.
And it's important to make plenty because we have 180 days and then you have the one
year.
And it's important to plan that.
So going forward, it's really going to impact a lot of students that are currently in school
or are not in school.
And they violated their status, but they have not been accruing unlawful presence which
means that if they're going to be trying to change the status through adjustment, through
a parent or through a spouse, those things are really important.
So right now, keep in mind that this is a policy change that is coming in August 9th.
It will be impacting all students that are here in DS status that currently are in violation
of status.
It's not going to be retroactive as far as we understand from the memo.
It's going to be effective from August 9th.
So anybody who is in violation of status will start accruing unlawful presence from August
9th onwards.
It's really, really going to be devastating to our students.
And I know that the education communities is out in rage on this, but it's important
to understand that there's a difference between violation of status by not going to school
or by doing something else and by a accruing unlawful presence until this memo is in effect
those students are not accruing unlawful presence and but they will from the date of this new
policy.
So it's important to understand and plan how you're going to be a, you know, if you're
trying to change your status.
They may not be a possibility to do that anymore.
Looking ahead, when are you going to be accruing unlawful presence, how much?
Those considerations must be dealt with your immigration attorneys and I can see that is
going to be a big, big problem.
So once again students that are currently in violation of status are going to start
accruing unlawful presence after August 9th based on this new memo.
If you have any questions, please post them in the comments below, or email me at Jacob@h1b.biz.
This is a really complex area and we hope to provide more updates very soon.
Thanks for watching.
And we'll provide more videos and updates in the next few weeks.
Bye.