Reminder: New Policy Regarding Unlawful Presence for F, J and M Nonimmigrants

30. Jan. 2019

As discussed in our June 4, 2018 article, USCIS changed how it calculates unlawful presence for nonimmigrants in F, J and M status.  Specifically, beginning August 9, 2018, nonimmigrants in F, J or M status begin accruing unlawful presence:

  1. The day after they no longer pursue their course of study or the authorized activity, or the day after he/she engages in an unauthorized activity;
  2. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period (e.g., 60-days after completion of F-1 OPT);
  3. The day after the Form I-94 expires, if the F, J or M nonimmigrant was admitted for a date certain; or
  4. The day after an immigration judge or, in certain cases, the BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).

If a nonimmigrant accrues unlawful presence of more than 180 continuous days, he/she will be barred from re-entry to the U.S. for 3-years, and unlawful presence of more than one continuous year results in a bar of 10-years. ILG is reminding our readers of this because the 180-day mark from the effective date of this policy (August 9, 2018) is February 5, 2019.  Anyone who is close to reaching 180-days of unlawful presence should arrange the leave the U.S. to avoid the 3-year bar from re-entry.