USCIS Memo: Student and exchange visitor visa holders who overstay will now automatically trigger Unlawful Presence accrual, with potentially severe consequences


Starting August 9, 2018, a change to current policy concerning students (F-1 and M-1) and exchange visitors (J-1) will make it much more likely they may begin accruing “unlawful presence” time. Unlawful presence can be a deciding factor in issuing 3-year, 10-year, and even permanent bars to future admission, visas, or adjustments of status.

Currently, there is typically no specific end date on these visas, as people in these categories are allowed to stay throughout the duration of their program and perhaps a grace period, and unlawful presence time doesn’t begin unless a visa-holder was formally found to have violated status. Under the new policy change, those holding these visas will begin accruing unlawful presence time as soon as they overstay or fail to maintain status, or if they violate status (whether a formal finding was issued or not).

If the failure to maintain status began before August 9, unlawful presence will begin on that date or retroactively on the date of an order of exclusion/deportation/removal, a Form I-94 expiration date. On or after August 9, unlawful presence may begin on the day after an authorized activity or grace period is completed, the day after a person engaged in unapproved activity (such as unauthorized employment), the day after Form I-94 expires, or the day after an order of exclusion/deportation/removal is issued. Unlawful presence of more than 180 days could lead to 3 or 10-year bars, while over one year may lead to a permanent bar.