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USCIS changes the way it counts "unlawful presence" time

May 3, 2019

Update: On May 3, 2019, a federal district court issued a nationwide preliminary injunction that temporarily prevents the Department of Homeland Security from enforcing the U.S. Citizenship and Immigration Services (USCIS) policy that changed how days of unlawful presence are counted following a violation of F, M, or J status.

The preliminary injunction temporarily blocks enforcement of the 2018 policy while the underlying case is resolved. Students and scholars with questions about the May 3, 2019 preliminary injunction and applicability to their individual situation, are advised to consult with an experienced immigration lawyer. For more information, please see the NAFSA website, Accrual of Unlawful Presence and F, J, and M Nonimmigrants.

August 9, 2018

USCIS has published new policy guidance to make it easier for international students and scholars to accrue “unlawful presence” in the U.S. As policies and regulations continue to change, it is important for international students and scholars to be mindful of their immigration requirements. We recommend reviewing the OISS website for maintaining your immigration status in the U.S. for international students and scholars.

The new USCIS policy has changed the way it counts days of "unlawful presence" that could subject an F or J visa holder to the 3- or 10-year bar on returning to the U.S. Previously, F and J visa holders that were admitted to the U.S. on their I-94 as Duration of Status (D/S) would only start to accrue unlawful presence after an immigration judge determined a status violation, or INS/USCIS determined a status violation in the adjudication of an application/petition.

Effective August 9, 2018 the unlawful presence count begins the day after the status violation. F and J visa holders (including dependents) who fail to maintain status begin to accrue unlawful presence on the day after:

  • Expiration of date-specific I-94,
  • Failing to pursue the course of study or authorized activity,
  • Engaging in unauthorized activity,
  • Completing course of study, program or practical training and any grace period, or
  • Removal order by immigration judge.

  • If an F or J visa holder is found to be unlawfully present for 180 days but less than one year they are barred from re-entry to the U.S. for 3 years. If an F or J visa holder is found to be unlawfully present for one consecutive year or more they are barred for 10 years.

    For additional resources, please see the NAFSA Association of International Educators website. If you have any questions, please do not hesitate to contact our office at any time.