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).