Analysis: USCIS Changed Policy on Unlawful Presence for F, J, M Visa Holders | KNG Law

On May 10, 2018 USCIS posted a policy memo changing how the agency will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.  

This policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

Current USCIS Policy on Unlawful Presence for F, J, M Nonimmigrants:

Under current USCIS policy, anyone with an F, J, or M duration of status (D/S) will not start accruing unlawful presence until the day after a formal determination by USCIS has been made that they have violated their F, J, or M status (while processing a request for another immigration benefit), or an immigration judge ordered the applicant excluded, deported, or removed.

Changed Policy Imposes Unlawful Presence for F, J, M Nonimmigrant Status Violations, starting the day of the status violation (whether violation was known or unknown at the time).

Effective Aug. 9 2018, USCIS will begin calculating the accrual of unlawful presence for those in F, J, and M status starting the day after a status violation. This is true whether or not the status violation was known at the time of the violation. To recap: unlawful presence will now begin the day after the status violation occurred and no longer the date after a formal determination of status violation. The memo states specifically that an F, M, or J status holder begins accruing unlawful presence the day after any of the following:

  • The course of study is no longer pursued;
  • Any unauthorized activity;
  • Completing the course of study or program  (including any authorized practical training plus any authorized grace period;
  • Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • An immigration judge orders an exclusion, deportation, or removal.

Harsh Consequences For Status Violations:

It is worthy to note that the changed policy will make those in F, J, and M status more susceptible to the three-year or even ten-year bars under immigration rules. 

Anyone who is in the U.S. unlawfully for 180 days will be barred from the U.S. for three years and anyone with more than one year of unlawful presence will be barred for ten years. Given the new calculation of unlawful presence it is quite possible that an individual may not have known they violated their status and remain present in the U.S. not knowing their unlawful presence calculation has started. 

USCIS is accepting comments on the policy memorandum. The 30-day public comment period closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.


By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas