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Posts Tagged ‘I-94’

Foreign Students and Exchange Visitors Beware!

Posted on: May 15th, 2018

By: Layli Eskandari Deal

On May 10, 2018, USCIS published a Policy Memorandum to provide guidance on how the agency will be calculating unlawful presence for F-1, J-1, and M-1 nonimmigrant visa holders and their dependents.

Generally, foreign students and exchange visitors are admitted to the United States for “Duration of Status”.  This means that the student or the exchange visitor is admitted to the United States for as long as the individual is still doing the activity for which the visa was issued.  For nonimmigrant (F-1 and M-1) this is generally for the duration of time that they are full time students plus the time they are in their period of authorized practical training.  The length of time generally depends on their course of study.  For Exchange Visitors (J-1) this is the period of time for their program to be completed.  Previously, unless USCIS or an Immigration Judge affirmatively terminated the status, F-1, M-1 and J-1 visa holders and their dependents would not accrue unlawful presence in the United States.

USCIS is now providing the following guidance, which is a significant change in how USCIS has treated “Duration of Status” in the past:

Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Accruing unlawful presence can prevent an individual from being able obtain a change of status to another visa category while in the United States or obtaining a new visa at a US Embassy or Consulate.  It can also prevent an individual from obtaining US Residency (green card).  It is very important that international students and exchange visitors understand this new guidance and confer with their immigration attorney regarding any questions.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Expansions of Georgia’s Immigration Laws Slated to Take Effect on July 1

Posted on: June 6th, 2013

By: Kelly E. Moul

 

While Washington continues to debate immigration reform, Governor Nathan Deal recently signed HB 160 into law.  The signing was completed quietly and without public comment, but still stands as a meaningful extension of Georgia’s current immigration regulations.

Below is a breakdown of the changes made by HB 160, which are slated to take effect in less than a month, on July 1, 2013.

Section 1 expands the E-Verify requirements of Georgia’s prior immigration bill, HB 87, by modifying the definition of “contractor” to include every subcontractor, with the exception of attorneys.  This provision means that any private business which contracts with a state contractor will now be subject to the state’s mandatory E-Verify requirement, even if they have fewer than eleven employees.

Section 2 grants authority to the Immigration Enforcement Review Board (IERB) to make Immigration and Customs Enforcement’s (ICE) strict “IMAGE” program a requirement for Georgia employers.

While IERB has been relatively inactive since its inception via HB 87, even the theoretical power to enforce IMAGE on Georgia employers would represent a major shift in the law.

Section 6 eliminates the Federal and Georgia’s Attorney General’s definitions of “Public Benefits” and replaces it with “Public Benefits” Grants, Public and Assisted Housing, Retirement Benefits, and State Driver Licenses.  The intent is to bar undocumented foreign nationals from obtaining government services and welfare benefits.

Section 7 restricts the use of foreign passports without an accompanying Form I-94 proof of lawful status.  This provision will make it more difficult for undocumented foreign nationals to obtain welfare benefits, and to enroll their children in public school.

Section 8 mandates creation of a new immigration compliance system.  This mandate, however, is completely unfunded and thus unlikely to be enforced.

As noted by several commentators, this law passed hastily at the end of Georgia’s legislative session and is poorly drafted.  For instance, the bill repeals all prior laws, but does not state specifically what laws are being repealed.

HB 160 also confuses the legal terms “lawful immigration status” and “lawful presence,” which are two very discrete issues in federal immigration law.  The bill also treats the acceptance of a passport differently than the federal government.

HB 160 likewise lacks a severability clause.  Without such a clause, if any part of HB 160 is declared unconstitutional, the entire law could be struck down.

As with HB 87, both immigration rights groups and business leaders have threatened litigation to prevent HB 160 from taking effect on July 1.  We will provide further updates as the situation unfolds.