Changes for F, J, M Visas

Tougher Rules on Overstay

Students and Exchange visitors currently present in the United States under F, J, or M visas will be more likely to be subjected to a 3-year or 10-year bar from the United States under new USCIS rules set to go into effect in August 2018, impacting their ability to travel abroad and to adjust status to family Green Card.

What happened?

On May 10th, 2018 USCIS released new rules about how ‘unlawful presence’ will be calculated for those in student (F), exchange visitor (J), and vocational status (M) in the United States, as well as their dependents (spouses and children ‘deriving’ their status from the principal visa holder).


How was it before?

Many F, J, and M visa holders were not considered to be unlawfully present in the United States if their visas were issued for the ‘Duration of Status’ (D/S), unless an immigration judge deemed them in violation of that status. For example, some F1 Student Visa holders admitted under D/S could stay in the United States for years after the end of their studies without being technically considered unlawfully present by U.S. immigration agencies.


How is it going to be?

No immigration judge ordering the visa holder excluded, deported, or removed is needed for the visa holder to be considered unlawfully present in the United States. The earliest of any of the following will start the unlawful presence:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized 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).

Why does unlawful presence matter?

Unlawful presence of 6 months or more in a single stay starts triggering ‘bars’ which make the applicant inadmissible to the United States: once they have departed the United States, applicants are ‘barred’ from returning to the United States for the duration of the bar. Being unlawfully present in the United States for more than 6 months triggers the 3-year bar and, being unlawfully present in the United States for more than 12 months triggers the 10-year bar.

What could be the consequences for family Green Card applications going through adjustment of status (I-485)?

Applicants who are unlawfully present in the United States cannot submit an I-485, unless they are ‘immediate relatives’. So applicants looking to submit an I-485 to switch from a F, J, or M visa to a Green Card under a family preference classification (F1, F2A, F2B, F3, F4) need to be much more careful than before.

It is likely that more students and exchange visitors will have to switch to consular processing for their family Green Card (for instance those getting married to a Green Card holder) because they will be unable to submit an I-485. In doing so, those subjected to the 3-year or 10-year bar, will have to submit waivers (either an I-601A waiver from within the United States, or an I-601 waiver from outside the United States), which will add a significant step to the Green Card process.

What could be the consequences for traveling in and out of the United States, or family Green Card applications going through consular processing?

Leaving the United States may trigger the 3-year or 10-year bar. The consular officer carrying out an interview at a consulate abroad, or the Customs and Border Patrol officer at the Port of Entry, may find the current or former F, J, or M visa holder inadmissible to the United States because of the 3-year or 10-year bar.

When will the new rules take effect?

August 9th, 2018. In the meantime, there is an even stronger incentive than before for F, J, and M visa holders to submit their I-485 if eligible to do so. See our Application for assistance.

Get further assistance with your I-485.