New Rule for Accruing Unlawful Presence for Students / Exchange Visitors in F, J or M Status

Students / exchange visitors in F, J or M status who overstay their student visas could be barred from re-entering the U.S. under a draft policy memorandum issued by the U.S. Citizenship and Immigration Services (USCIS) on May 11.

This new proposed policy changes how immigration authorities calculate “unlawful presence” in the United States.

The policy is set to take effect on August 9, 2018.

Under current immigration policy, unlawful presence begins the day after immigration officials discover a status violation and issue a formal notice of such findings, or after an immigration judge orders the foreign national excluded, deported, or removed from the United States, whichever date comes first.

The new policy states that international students and exchange visitors in F, J or M visas will now begin accruing “unlawful presence” from “the day after” the student no longer pursues the course of study or completes the course of study (including any periods of Optional Practical Training) through which they were authorized to enter the U.S.

Students / exchange visitors who have overstayed will not be eligible to apply for a new visa or change status while in the United States.

Remaining unlawfully present in the U.S. for 180 days can result in a bar from entering the U.S. for a minimum of three years.

Remaining unlawfully present in the U.S. for more than one year can result in a ten-year bar.

The draft policy is currently open for public comment until June 11, 2018.