USCIS Policy Change on Accrual of Unlawful Presence for Nonimmigrant Students and Exchange Visitors

On May 10, 2018, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum which provides guidance and assists in the calculation of unlawful presence of those in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status and their dependents while in the United States. The Policy Memorandum revises previous policy guidance on the interpretation of unlawful presence for such F, J, and M nonimmigrants. 

Under the former policy, those who entered the United States for the duration of their studies and applicable training periods (Duration of Status “D/S”) did not automatically begin to accrue unlawful presence if they overstayed or violated their nonimmigrant status. Rather, unlawful presence was triggered only upon a formal finding by USCIS that a nonimmigrant status violation had occurred or on an immigration judge’s ordering the person to be excluded, removed, or deported.

Pursuant to the new policy, beginning August 9, 2018, anyone granted D/S who is in F, J, or M status will begin to accrue unlawful presence under any of the following.

  1. The day after the individual no longer pursues the course of study or the authorized activity, or the day after engaging in any unauthorized activity
  2. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period
  3. The day after being ordered excluded, deported, or removed

Under the new policy, F, J, and M nonimmigrants will still become unlawfully present following a formal finding of a status violation by the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR). 

The new policy will take effect on August 9, 2018.