10 Things to Know About the USCIS Policy Memo on “Unlawful Presence”


U.S. Citizenship and Immigration Services (USCIS) recently released a policy memo that mentions two groups we care about a lot here at Greenheart International: Exchange Visitors and International Students! The new policy takes effect today, Thursday, August 9, 2018. Here are the top ten things to know about this memo:

  1. If you’re not “unlawfully present,” it’s irrelevant!

Unlawfully presence means that you’re in the U.S. when you’re not supposed to be in the U.S. For example, those who overstay their visa, are unlawfully present. If you’re not and don’t become unlawfully present, this memo won’t impact you.

  1. There’s a new way to count unlawful presence.

The memo introduces new steps that will guide how and when to start counting unlawful presence. Before, a formal decision from USCIS started the count; now USCIS will look to the date that an unlawfully present Exchange Visitor (J-1 visa) or International Student (F-1 visa) first failed to follow the rules of their program.

  1. The count will start earlier.

Experts agree that the unlawful presence count will start earlier than in the past when the memo takes effect on Thursday, August 9, 2018.

For example, let’s say an Exchange Visitor (J-1 visa) or International Student (F-1 visa) breaks a program rule on August 13th. In the past, they could receive the formal USCIS decision that begins the unlawful presence count months or even years later. Now, the unlawful presence count will begin the day after the rule was broken.

  1. Unlawful presence has consequences.

There have always been consequences for unlawful presence. For example, common consequences of unlawful presence include being unable to re-enter the U.S. for 3 or even 10 years.

  1. It will be easier to get more serious consequences.

The policy memo does not create new consequences for unlawful presence, but it will be easier to get more serious consequences, like that 10-year ban on re-entering the U.S. because the count starts earlier.

  1. There’s more to learn.

We’ll have to wait and see how USCIS applies the memo beginning Thursday, August 9, 2018 to fully understand its impact. We can expect to learn more later this year and you can expect that we’ll let you know when we have a more complete understanding.

  1. Maintain legal status to avoid negative consequences.

The good news is that we know that the way to avoid the negative consequences of unlawful presence is to maintain legal status. Numbers 8 through 10 below tell you how to do that.

  1. Know your program dates.

Maintain legal status by knowing the dates that you are authorized to be in the U.S. and departing in a timely fashion unless you have already successfully changed to another legal status.

  1. Follow ALL the rules of your program.

Sometimes people think that all that matters is your program dates, but that’s not true! Engaging in unauthorized activities, like working for an unauthorized employer, is another way that you can break the rules and fail to maintain legal status.

  1. Keep in touch with your sponsor (that’s us!).

Make sure to complete your required monthly check-in and know that Greenheart is here to help you maintain legal status while enjoying all the benefits of your cultural exchange program. Don’t hesitate to contact us if you have questions or concerns!

TL; DR: It’s more important than ever to know and follow the rules that govern your exchange program. Following the rules has always been the right thing to do and it’s the only sure way to avoid the negative consequences of unlawful presence.

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