May. 21, 2018

USCIS Revises Guidance on Calculation of Unlawful Presence for Students and Exchange Visitors

On May 10, 2018, USCIS issued a Policy Memorandum offering new guidance to immigration officers on the calculation of unlawful presence for those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents, admitted for “duration of status” or until a specific date.

Under prior USCIS policy, foreign students and exchange visitors who were admitted for, or present in the United States in, duration of status (D/S) were deemed to have started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed. In practice, this meant that a student or exchange visitor who failed to abide by the conditions of his or her nonimmigrant status by, for example, completing or ceasing to pursue his or her course of study or activity as reflected on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, or by engaging in unauthorized activity/employment, would be out of status, but would not be accruing unlawful presence unless and until one of the following occurred:

  • Department of Homeland Security (DHS)/USCIS denied a request for an immigration benefit, and in the course of doing so, made a formal finding that the individual violated his or her nonimmigrant status; or
  • An immigration judge or, in certain cases, the Board of Immigration Appeals (BIA), made a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings.

Pursuant to USCIS’s revised policy, which takes effect on August 9, 2018, F, J, and M nonimmigrants and their dependents begin accruing unlawful presence as soon as they fail to maintain their nonimmigrant status. In other words, as of August 9, 2018, an F, J, or M nonimmigrant begins accruing unlawful presence the day after the individual no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity; and/or the day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2).

The distinction between merely failing to maintain one’s nonimmigrant status and accruing unlawful presence has critical implications for the three-year and 10-year bars found in INA 212(a)(9)(B). Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible. Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

Under this tightened policy on the accrual of unlawful presence for students and exchange visitors, it will become more important than ever for students and exchange visitors to be aware of issues related to their maintenance of status, and the potential consequences of remaining in the United States for those who complete a course of study or exchange program; who are suspended, expelled, or drop below a full course load without proper authorization; or those who otherwise fail to maintain their lawful nonimmigrant status pursuant to the terms of their Form I-20 or DS-2019.


***The above information has been provided for educational purposes only and should not be construed as legal advice***