USCIS Unlawful Presence Policy Effective August 9, 2018

Please noteThe information provided in this post was accurate and up-to-date at the time of posting. Due to the dynamic nature of immigration policy, it is possible that the information or links provided may have changed over time. Users are advised to verify the accuracy and relevance of the content.

September 24, 2018

Effective August 9, 2018, USCIS updated policy regarding Unlawful Presence, which increases potential consequences for F-1/J-1 students who violate their status.  The best way to avoid these consequences is to make sure you properly maintain your F-1/J-1 status while you are a student  and during any F-1/J-1 post-completion training periods. Unlawful presence days begin accruing from the day an F-1 or J-1 violates status and can impact the ability to return to the US in the future, including 3 or 10 year bars on re-entry (dependent on number of days accrued). See here for BIO tips on How to Maintain your F-1/J-1  Student Status.

USCIS Issued a Final Policy Memo on August 9, 2018 outlining the changes and guidance which contains a number of exceptions and clarifications of when unlawful presence does NOT apply including: pre/post-completion grace periods, authorized reduced course load periods, annual vacations, change of educational level, OPT/OPT STEM and cap-gap periods, pending OPT/STEM applications,  school transfers, during a timely field reinstatement application, and during a timely filed pending Change of Status application period.  As of August 9, unlawful presence days DO begin accruing after F, J, or M nonimmigrant no longer pursues the course of study or the authorized program 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 the F, J, or M nonimmigrant was admitted for a date certain; or the day after an immigration judge orders the student excluded, deported, or removed . For a detailed explanation of the changes, see NAFSA's ULP summary.