USCIS Changes Unlawful Presence Calculation for F, J, and M Visas

USCIS issued a memorandum on May 10 that modifies the method for calculating “unlawful presence” for F, J, and M student and exchange visitor visas, effective August 9, 2018.

What Is Unlawful Presence?

The author previously explained in the article “Consequences and Precautions of Overstaying in the U.S. After a Visa Extension Denial” that once the I-94 expires, legal status automatically ends, which constitutes overstay. However, as long as there are no other violations of status and a timely application for extension or change of status is filed while the case remains pending, it does not constitute unlawful presence.

The significance of distinguishing these two concepts lies in the clear bans triggered by unlawful presence. Under INA section 212(a)(9)(B)(i), unlawful presence of more than 180 days results in a 3-year bar on admission; unlawful presence of more than 365 days results in a 10-year bar on admission.

What Is the Change in Calculation?

Under the old policy, once F/J/M status was no longer valid—for example, after the I-94 expired, or when a D/S status without a specific date limit continued after the end of studies—it was considered an overstay; the more serious unlawful presence began to accrue only after the Department of Homeland Security made a formal finding of a violation of nonimmigrant status, or after an immigration judge ordered exclusion or removal.

New policy: Unlawful presence begins to accrue automatically once F/J/M status expires.

What Has Not Changed?

As long as there are no other violations of status, a grace period still exists after the end of study—after all, packing and buying tickets take time—and stay during this period does not count as unlawful presence. The USCIS text reads as follows:

Foreign students (F nonimmigrants) generally do not accrue unlawful presence in certain situations, including but not limited to: […] During any additional grace period as permitted under 8 CFR 214.2(f)(5)(iv) to prepare for departure: 60 days following completion of a course of study and any authorized practical training; 15 days if the designated school official (DSO) authorized the withdrawal from classes (SEVIS termination reason: authorized early withdrawal); or No grace period if the F-1 nonimmigrant failed to maintain a full course of study without the approval of the DSO or otherwise failed to maintain status.

The same rules apply to M/J status.

In addition, as long as an application for extension or change of status is timely filed before the status expires and is non-frivolous, the period while the case is pending is not considered unlawful presence. However, if such an application is not timely filed (i.e., filed after the status has expired), or the application is deemed frivolous, or there is unauthorized work, then unlawful presence still accrues even if the case remains pending.

The USCIS text reads as follows:

(3) Aliens Present in Unlawful Status Who Do Not Accrue Unlawful Presence by Virtue of USCIS Policy for Purposes of Sections 212(a)(9)(B) and (C)(i)(I) of the Act * * * (D) Nonimmigrants – Effect of a Decision on the Request for Extension of Status (EOS) or Change of Status (COS) on Unlawful Presence The following information pertains to applications requesting EOS or COS, or petitions that include requests for EOS or COS. (i) Approved Requests * * * (ii) Denials Based on Frivolous Filings or Unauthorized Employment If a request for EOS or COS is denied because it was frivolous or because the alien engaged in unauthorized employment, the EOS or COS application does not protect the alien from accruing unlawful presence. The alien accrues unlawful presence as outlined in Chapter 40.9.2(b)(1)(E), Lawful Nonimmigrants. (iii) Denials of Untimely Applications If a request for EOS or COS is denied because it was not timely filed, the EOS or COS application does not protect the alien from accruing unlawful presence. The alien accrues unlawful presence as outlined in Chapter 40.9.2(b)(1)(E), Lawful Nonimmigrants. (iv) Denials for Cause of Timely Filed, Non-Frivolous Applications for EOS or COS * * *

Frequently Asked Questions

After the memorandum was released, anxious readers have already asked questions. For example, the following two:

• Question: My wife filed Form I-539 in February this year to change from F-1 to F-2, and then terminated her F-1 status in March. Under the old policy, she should now be in overstay status. I read the new policy carefully and found that it does not mention whether a pending change of status case counts as unlawful presence. So I would like to ask: does my wife’s situation now count as unlawful presence?

• Answer: As long as a timely, non-frivolous extension or AOS application was filed, the pending period does not count as unlawful presence.

• Question: I filed a B visa extension application for my parents in March. Now USCIS has issued a new policy: according to World Journal, U.S. Citizenship and Immigration Services announced new rules on May 11 that, effective August 9, foreign students, exchange visitors and their dependents who fail to maintain lawful status the day after completing their course of study, graduating, or their I-94 card expires will be considered to be in unlawful presence. If unlawful presence accumulates to 180 days or one year, they may be barred from reentry for 3 or 10 years. How should this be interpreted? Do they need to leave the U.S. before August 9?

• Answer: The memorandum applies only to F/M/J and their dependent visas (F2/M2/J2), not to B1/B2 visas. Under immigration law, your parents are not your dependents.