About the writer

" Anindita A. Chowdhury, is the Founder and Managing Attorney of USILaw, Inc. As a leading practitioner of Immigration Law, she possesses a track record of success with over twenty years of experience in the field. Anindita specializes in Business Immigration and has in-depth expertise in the full range of Employment and Immigration Visas for the United States as well as for several other countries, including Canada, Australia, Singapore, China and India, among others. "

Revised and Final Policy Memo - Unlawful Presence for F, J, and M Nonimmigrants

On August 9, 2018, the USCIS released a new policy memorandum that revises and supersedes their previous May 10, 2018 policy memorandum titled “Unlawful Presence and F, J, and M, Nonimmigrants” and all other previous guidance pertaining to this matter.

Previously, F, J, and M Nonimmigrants began to accrue unlawful status “on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed.” In cases where an F, J, or M Nonimmigrant maintained an I-94 record that expired on a specific date (instead of having been admitted for a Duration of Status), the nonimmigrant could also have accrued nonimmigrant status following the expiry of their I-94.

The USCIS has now stated that due to updated technology, such as the Student and Exchange Visitor Information System (SEVIS), they are better able to monitor F, J, and M Nonimmigrants who may have violated their status, but who have not yet begun to accrue unlawful presence under previous regulations. The USCIS has stated that in an effort to “reduce the number of overstays” in the F, J, and M nonimmigrant categories, they will now calculate unlawful presence for F, J, and M Nonimmigrants (and their dependents) in the following ways:

  1. F, J, and M Nonimmigrants who have already overstayed and/or failed to maintain their status before the issuance of this memorandum (August 9, 2018) will begin to accrue unlawful presence on August 9, 2018 unless they have already previously started to accrue unlawful presence based on the previous regulations;
  2. F, J, and M Nonimmigrants who have failed to maintain their status on or after August 9, 2018 will begin to accrue unlawful presence on the earliest of the following circumstances:
    • “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;”
    • “The day after the Form I-94 expires” if not granted a Duration of Status;
    • “The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed.”

In other words, accrual of unlawful presence will no longer be based only on when either the USCIS or an Immigration Judge formally finds a nonimmigrant status violation (or after the expiry of  an I-94). The accrual of unlawful presence will now begin the day after any violation of the F, J, or M Nonimmigrant’s status, as well.

In addition, as part of the revision to the May 2018 memorandum, the new policy memorandum stipulates that starting August 9, 2018, “F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.” The accrual of unlawful presence will only continue if the reinstatement of status is denied, and the calculation of unlawful presence will begin on the day after the denial.

It is important to note that a timely filed reinstatement of status must fall within 5 months of the nonimmigrants’ initial failure to maintain their F, J, or M status.