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New Policy Changes to Calculation of “Unlawful Presence” will Affect F-1, M-1, and J-1 Nonimmigrants.

On May 10, 2018 the U.S. Citizenship and Immigration Services (USCIS) announced that it will redefine how “unlawful presence” may be accrued by foreign students who entered the U.S. on F (student), J (exchange visitor), and M (vocational student) nonimmigrant visas.

Calculation of Unlawful Presence

“Unlawful presence” occurs when an individual remains present in the U.S. after their period of stay has expired or without being admitted or paroled into the U.S. Generally, an individual who was unlawfully present in the United States for a period of more than 180 days but less than 1 year may be barred from re-entry for three years. If an individual has accrued unlawful presence for more than 1 year, then a ten-year bar to re-entry applies.

Occasionally, students under F, J, and M visas violate their visas by overstaying. Overstaying occurs when an individual remains in the U.S. after the purpose for their visit has expired. An example of this occurring is when a foreign student graduates or reduces their enrolled units below the minimum number of units required to maintain their foreign student visa status, and then continues to remain in the U.S. Under the new USCIS policy, individuals in this scenario will begin accruing unlawful presence the next day after these events.

Differences Between New and Old Unlawful Presence Policies

Under the former policy, a foreign student in the U.S. would begin to accrue unlawful presence only after USCIS or an immigration judge made a formal finding of a violation of status, whichever came first. Under the new policy, nonimmigrant students and exchange visitors on F, J, and M visas who fail to maintain nonimmigrant status before August 9, 2018 will generally begin accruing unlawful presence on that day. Unlawful presence accrual no longer requires USCIS or an immigration judge to first make a formal finding of violation.

August 9, 2018 will become an important date for F, J, and M nonimmigrant visa holders in determining whether they have failed to maintain nonimmigrant status.

Before August 9, 2018

F, J and M nonimmigrants who fail to maintain nonimmigrant status before August 9, 2018 will generally start accruing unlawful presence on August 9, 2018 unless they had already started accruing unlawful presence based on the earliest of any of the following:

  • The day after the Department of Homeland Security denied the request for an immigration benefit, if DHS made a formal finding that the foreign national violated their nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94 expired, if the foreign national was admitted until a specific date; or
  • The day after an immigration judge or, in certain cases, the Board of Immigration Appeals, ordered the foreign national excluded, deported, or removed (whether or not the decision is appealed).

After August 9, 2018

F, J and M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018, will generally start accruing unlawful presence the day after they stop pursuing their authorized course of study, engage in unauthorized activity, or complete their program and authorized grace period. F, J and M nonimmigrants who fail to maintain nonimmigrant status on or after August 9, 2018 will begin accruing unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after they engage in an unauthorized activity (such as unauthorized employment);
  • The day after completing the course of study or program plus any authorized grace period;
  • The day after the Form I-94 expires, if the foreign national was admitted until a specific date; or
  • The day after an immigration judge or, in certain cases, the BIA orders the foreign national excluded, deported, or removed (whether or not the decision is appealed).

If you are a student who is in the U.S. under a F, J, or M nonimmigrant visa, please be aware of the requirements for maintaining your nonimmigrant status. If you are unsure or have questions regarding your F, J, or M nonimmigrant status be sure to speak with an experienced U.S. Immigration Attorney.

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