On May 18, 2018, USCIS issued a policy memorandum announcing that it will radically revise how unlawful presence is accrued for students and exchange visitors who fail to maintain their F, J, or M visitor status. To learn more about this memorandum, please click here.

After the month-long public comment period, USCIS have since issued a revised guidance as a response to the public comments. The agency has clarified two key points:

  • An F-1 or M-1 student who files a timely request for reinstatement of status will not accrue unlawful presence while their request is being adjudicated. An application is considered timely if it is submitted within five months of the status violation. If the application is approved, the F or M nonimmigrant will resume lawful status. If it is denied, the F or M nonimmigrant will resume the accrual of unlawful presence.
  • A J-1 nonimmigrant will not be considered to have accrued unlawful presence if he or she submits a request for reinstatement to the State Department and it is approved.

Under the new policy, as of August 9, 2018, USCIS will consider an F, J, or M nonimmigrant who violates the term of their status to be unlawfully present in the country and will calculate unlawful presence from the day after the status violation occurs. For status violations that occurred before the effective date of the policy, USCIS will calculate unlawful presence from August 9, 2018 onwards.  Unlawful presence is defined as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled. Accruing more than 180 days, but less than one year, of unlawful presence can result in a 3-year bar from entering the United Sates. Accruing more than a year of unlawful presence can result in a 10-year bar from entering the country again. This memorandum will supersede all current guidelines.

To find out more about the new rules or other investor visas, contact Scott Legal, P.C.


Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at info@legalservicesincorporated.com.

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