On May 10, 2018 U.S. Citizenship and Immigration Services (USCIS) issued a new Policy Memorandum which greatly expands the “unlawful presence” for F, J and M academic, vocational and exchange students and their dependents. This is a significant policy change because “unlawful presence” for more than 180 days results in a three (3) or ten year bar after a student or exchange visitor departs the U.S.

Previously foreign students and exchange visitors admitted for Duration of Status (D/S) did not begin to accrue unlawful presence, even if they overstayed their departure periods, until 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 (whether or not the decision is appealed), whichever came first.

The new USCIS guidance, which invites public comment until June 11, 2018, provides that students and exchange visitors admitted to the U.S. for Duration of Status (D/S) or until a specific date certain will generally begin accruing unlawful presence on the day they fail to maintain their nonimmigrant status as follows:

F, J, or M nonimmigrants who failed to maintain nonimmigrant status on or after August 9, 2018 will begin accruing unlawful presence on the earliest of any 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 he or she engages 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 Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or, in certain cases, the Board of Immigration Appeals (BIA) orders the individual excluded, deported, or removed (whether or not the decision is appealed).

This policy change means a foreign student who stays in the U.S. beyond her/his 30 or 60 day post Optional Practical Training (OPT) or program grace period, withdraws from school, or works without authorization will begin to accrue unlawful presence toward the 3/10 year bar on the day s/he drops out of school (for whatever reason) or engages in unauthorized employment. While such immigration violations have always led to removability, this policy change means that foreign students who violate status during their program period, whether willfully or innocently, may also be subject to the 3/10 year bars to readmission once they leave the U.S.

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 will start accruing unlawful presence based on that failure on August 9, 2018 unless the individual had already started accruing unlawful presence on the earliest of the following:

  • The day after the Department of Homeland Security (DHS) denied the request for an 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 the Form I-94, Arrival/Departure Record, expired, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or, in certain cases, the BIA, ordered the individual excluded, deported, or removed (whether or not the decision is appealed).