Change in USCIS Policy on Accrued Unlawful Presence

U.S. Citizenship and Immigration Services (USCIS) has proposed a fundamental change to the way they determine whether F and J visa holders have “over-stayed” their legal status in the U.S.(i.e. unlawful presence).  Under current policy, the unlawful presence count begins only after a formal finding of a status violation by a DHS officer in the course of a benefits application, or by an immigration judge in the course of removal proceedings. Under the new policy, the unlawful presence count begins the day after the status violation.

The status violation refers to circumstances that F or J visa holders do not maintain their valid visa status  (e.g. withdraw from schools with F1 status, work without appropriate legal permission, stay in the U.S. beyond the end of grace period, etc…) or otherwise violate the terms of their F or J visas. Graduating students with valid F-1 status are still eligible for the 60-day grace period from the date of graduation. Graduating students who have applied for OPT are still eligible to remain in the U.S. while waiting for the approval of their OPT, even it exceeds 60 days. Exchange Visitor are still eligible for the 30-day grace period after their program ends.

If you are in the U.S. presently and your U.S. embassy visa (F or J) has expired, you are still in the U.S. legally as long as your DS-2019 or I-20 has not expired. The new guidance would come into effect on August 9, 2018.  

ISSS as well as our professional associations are analyzing the new proposal and its impact. ISSS will post an update once a full evaluation has been completed.