Effective August 9, 2018

Effective August 9, 2018, USCIS will change its policy on the determination of unlawful presence for foreign students, vocational students and exchange visitors who were admitted or are present in the United States for duration of status.

Changes In Unlawful Presence Policy for Foreign Students

On or after August 9, 2018, an F, J, or M nonimmigrant begins accruing unlawful presence due to a failure to maintain his or her status 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 unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus grace period);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted up to a certain date; or
  • The day after an immigration judge orders the foreign national excluded, deported, or removed.

Previous policy allowed F, J, and M nonimmigrants in the U.S. in duration of status to remain without accruing unlawful presence 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.

Foreign students (F-1 nonimmigrants) generally do not accrue unlawful presence in certain situations including:

  • During the period permitted under 8 CFR 214.2(f)(5)(i), which is a period of up to 30 days before the program start date listed on the F-1’s Form I-20;
  • While the F-1 is pursuing a full course of student at an educational institution approved by the Department of Homeland Security and any additional periods of authorized pre or post completion practical training;
  • During a change in educational levels;
  • While the F-1 is in a cap gap period;
  • While F-1’s applications for post-completion Optional Practical Training remains pending;
  • While the F-1 is pursuing a school transfer;
  • The period an F-1 was out of status if he or she applies for reinstatement provided the application is ultimately approved;
  • During annual vacation if the F-1 is eligible and intends to register for the next term;
  • During any additional grace periods to prepare for departure;
  • Emergent circumstances when on-campus or off-campus employment is suspended by a Federal Register notice; and
  • During a period of authorized reduced course load.

Authorized Period of Stay

The period of stay authorized for an F-2, J-2, or M-2 dependent (spouse or child) admitted for duration of status is contingent on the F-1, J-1, or M-1. The dependent’s authorized stay ends when the principal nonimmigrant’s period of stay ends. In addition, the dependent’s authorized period of stay may end due to the dependent’s own conduct or circumstances. A nonimmigrant under 18 years of age does not accrue unlawful presence.

Individuals who have accrued more than 180 days of unlawful present during a single stay, and then depart, may be subject to the three-year or 10-year bars to admission depending on how much unlawful presence they accrued before they departed the U.S.

For more information regarding this change in policy, please contact Dana Rifai.

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