Changes in Counting Days of Unlawful Presence

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It is very important that all international students and scholars maintain legal status, and understand the recent changes that affect unlawful presence in the United States.  Effective August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might affect a person’s ability to return to the US.  Depending on the number of days a person remains in the US following a status violation, the result could be a bar to entering the US for a number of years or permanently. Under the new policy, USCIS will start counting days of unlawful presence the day after an F or J status violation occurs, unless the student applies for reinstatement or the student or exchange visitor is covered by some other exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation.

Under the new policy, an F or J nonimmigrant will begin accruing unlawful presence on the earliest of any of the following:

  • The day after the F or J nonimmigrant no longer pursues the course of study or authorized activity, or the day after they engage in an unauthorized activity
  • The day after completing the course of study or program (including authorized practical training  or academic training) plus any authorized grace period
  • The day after the Form I-94 expires (if admitted for a date certain rather than “D/S”)
  • The day after an immigration judge orders the nonimmigrant excluded, deported, or removed

It is important to:

  • Understand all the requirements for maintaining your legal status
  • Understand what approval you need before beginning any employment or volunteer work
  • Understand what approval you need before dropping below 12 units of coursework (for students)
  • Contact your SISS advisor if you have any questions about maintaining legal status

Unlawful presence has significant negative consequences for future immigration benefits, including three-year, ten-year, and permanent bars to admission to the United States, depending upon the amount of unlawful presence accrued.  It is important for F-1 students, J-1 Exchange Visitors (students and scholars), and F-2 and J-2 dependents to follow all rules and regulations with regard to their nonimmigrant classifications, so that they do not unknowingly fall out of status and begin accruing unlawful presence.

SISS advisors are your most important resource for understanding how to maintain your legal status, and are here to help you with any questions related to this new policy.

Please visit our Unlawful Presence FAQs for further information 

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