Effective August 9, 2018, USCIS made fundamental changes to its policy inasmuch that students’ or exchange visitors’ status violations will automatically make them unlawfully present and subject to the 3- or 10-year reentry bars. Under the new policy, USCIS will start counting days of unlawful presence the day after a F, M or J status violation occurs, unless the student applies for reinstatement or the student or exchange visitor is covered by some other exception to the unlawful presence counting rules.

Prior policy did not count unlawful presence until USCIS or an immigration judge made a formal finding of such status violation. Under former policy, which had been in place for 20 years, there has always been a strict distinction between violating visa status and unlawful presence, and unlawful presence only began after USCIS or an Immigration Judge made a formal finding of a violation of status or they were ordered removed, deported or excluded. This meant that one could be in violation of status without being unlawfully present and if a student dropped out of school, or engaged in unauthorized employment, he or she would be considered to have violated their status, but would not accrue unlawful presence. This was because unlike those in other non-immigrant visa statuses, students and exchange visitors are not given a specific end date of their stay, but are generally admitted to stay in the United States for the Duration of Status, (D/S), i.e. the length of their programs.

Now, a simple violation of status, even unknowingly, without any formal notice or finding can start the clock for unlawful presence. According to the policy memorandum:

F, J or M Nonimmigrants will start accruing unlawful presence on the earliest of:

• The day after they are no longer pursuing the authorized activity;
• The day after they engage in unauthorized activity;
• The day after completing the course of study or program including authorized practical training plus any authorized grace period;
• The day after their I-94 expires (if one was issued with a date certain); or
• The day after they are ordered excluded, deported or removed.

The key difference concerning the policy change is that under the new policy the date on which a person begins to accrue unlawful presence is not set by official determination date. A foreign national can learn only after the fact that he or she has already accrued a certain period of time of unlawful presence and can suffer significant consequences through no fault of his or her own.

However, the accrual of unlawful presence will be suspended during the period that a timely-filed F or M reinstatement application is pending. Timely filed means within 5 months of the status violation. The accrual of unlawful presence resumes on the day after USCIS ultimately denies the application for reinstatement. For J-1 reinstatement requests, such tolling provision is not provided.

The 3 year bar applies to foreign nationals who accrue more than 180 days, but less than a year of unlawful presence, the 10 year bar to those with more than one year of unlawful presence. A foreign national who is subject to the 3-year, 10-year, or permanent unlawful presence bars to admission are generally not allowed to apply for a visa, admission, or adjustment of status to permanent residence. Waivers of these bars may be possible in certain circumstances, such as extreme hardship to a spouse or parent who is a US citizen.