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"Unlawful Presence" Changes For Certain Immigrant Classes

student visa outside general counsel

According to the new Guidance issued by the USCIS, if an academic student, exchange visitor, or vocational student on a temporary F, J, or M visa, fails to maintain temporary immigration status, he or she will automatically begin accruing unlawful presence in the United States. This is a change from the previous policy under which one only accrued unlawful presence after USCIS formally found a non-immigrant 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 (whether or not the decision is appealed), whichever came first.

A foreign national who accrues more than 180 days of unlawful presence — whether intentionally or through inadvertence — will be subject to a three-year bar on reentering the United States. A foreign national who accrues more than one year of unlawful presence will be subject to a ten-year bar. These bars go into effect immediately upon the individual's departure from the United States.

Under the new policy, violations of status will begin the day after the student or exchange visitor no longer pursues an authorized course of study or other authorized activity; the day after he or she engages in an unauthorized activity; or the day after completing the course of study or program (including any authorized practical training plus any authorized grace period). Despite the change in policy, foreign students will not accrue unlawful presence in the following situations:

  • During the 30-day period before the program start date listed on Form I-20 and the 60-day grace period following completion of course study or authorized practical training

  • While the student is pursuing a full course of study and any additional periods of authorized pre-or post-completion practical training

  • When the student is in the so-called "cap gap" period (i.e., during the change from F-1 student status to H-1B work visa status)

  • While the student's application for post-completion Optional Practical Training (OPT) remains pending

  • The period of time a timely-filed (within 5 months) reinstatement application is pending with USCIS

  • The period of time a student was out of status if he or she timely applied (within 5 months of the status violation) for reinstatement provided the application is ultimately approved. A student who files a timely request for reinstatement of status will not accrue unlawful presence while their request is being adjudicated. If the application is approved, the student will resume lawful status. If denied, the student will resume the accrual of unlawful presence.

Accumulation of unlawful presence can have serious immigration consequences.

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