As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

The final policy memorandum includes the following additions regarding reinstatement applications:

• F and M nonimmigrants who fall out of status and timely file for reinstatement of their status will have their accrual of unlawful presence suspended while their application is pending with USCIS.
• For purposes of counting unlawful presence for F and M nonimmigrants, a reinstatement application will be considered timely filed if the applicant has not been out of status for more than five months at the time the application is filed.
• If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.
• An F, J or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

If you have any questions, please contact Joanna Silver, or any other member of our Immigration Practice Group or Higher Education Practice Group or the attorney in our firm with whom you are regularly in contact.