A recently issued USCIS Policy Memorandum (PM) changes how unlawful presence will be calculated for F, J and M Nonimmigrants. Determination of unlawful presence matters because if a nonimmigrant accrues unlawful presence of more than 180 continuous days, s/he 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.
Starting August 9, 2018, F, J and M Nonimmigrants begin accruing unlawful presence:
- 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 (e.g., 60-days after completion of F-1 OPT);
- 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 BIA orders the alien excluded, deported, or removed (whether or not the decision is appealed).
For those whose violation began before August 9, 2018, they will start accruing unlawful presence on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of (a) the day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit; (b) the day after his/her I-94 expired, if the F, J or M nonimmigrant was admitted for a date certain; or (c) the day after an immigration judge or the Board of Immigration Appeals ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).
Prior to this policy change, F, J or M nonimmigrants only began to accrue unlawful presence after an official determination had been made by USCIS or an immigration judge that the nonimmigrant has violated his or her status. Under the new policy, an official determination isn’t required and thus an individual may begin accruing unlawful presence for months without realizing it.