Accruing unlawful presence in the U.S. is never a good thing in the world of immigration law. As soon as your departure date on your I-94 expires or you are no longer maintaining your visa status, you begin accruing unlawful presence time, which can result in severe penalties that may make it much more difficult to re-enter the U.S. in the future. For those who are students or exchange visitors, falling out of status can be a more difficult thing to avoid. That’s why the USCIS has made some changes through a memorandum to help those who may have accumulated unlawful presence in the U.S. under these visas.
Let’s start with getting a better understanding of the nonimmigrant statuses that are covered by the memorandum. The first is the student visa. There are two main subcategories for this: the F-1 visa and the M-1 visa.
The F-1 visa is for those who are studying at a secondary school, college, or university. On the other hand, the M-1 is for those who are studying at a vocational school or a seminary. Because there is no direct route from a student visa to a green card, many people are misinformed and end up overstaying while they attempt to change or adjust their status. This will lead to being considered “out of status”.
Exchange Visitor Visa
The second category covered by the memorandum is the exchange visitor visa, otherwise known as the J-1 visa. Like the F and M visas, this also caters to students and requires a sponsorship by a program rather than an employer (although many people choose to work through the J-1).
While the J-1 has its advantages, there is one major disadvantage that can hinder many people. After your stint on the J-1 visa, you must return home for at least 2 years before returning to the U.S. under any green card or visa. This home residency requirement can be waived through several different means, but many people accidentally overstay their departure date waiting on this waiver.
Unlawful Presence vs Being Out of Status
If you overstay your visa departure date or enter the country illegally, you will begin to accrue unlawful presence. This will almost invariably result in you being barred from re-entry for a certain period of time. The longer your unlawful presence is, the longer your bar will last. For example, being unlawfully present for six months will likely result in a re-entry bar that lasts 3 years.
Being considered “out of status” usually happens when you violate your status in some way. For many F-1 and M-1 holders, this can be the result of working without an OPT extension or switching schools or programs without the consent or notification of the USCIS. While this also carries with it heavy penalties, they are generally not as severe as accruing unlawful presence.
How USCIS Policy Has Changed
In May of 2018, the USCIS released a memorandum that, in line with the president’s new executive order for Enhancing Public Safety in the Interior of the United States. This cracked down on F, M, and J nonimmigrants who overstayed their visa statuses. The change was in response to an increasing number of these aliens continuing to stay in the U.S. after their school or program had ended. In fact, the number of overstays are much higher in these three visa categories than for other nonimmigrant visas.
The May memorandum stated that F, M, and J nonimmigrants will begin to accrue unlawful presence as soon as they fail to maintain their status (i.e. the program or school period ends and the nonimmigrant is still in the U.S.).
However, another memorandum has been released that overrides the changes made in May. After receiving feedback from the public and from key stakeholders, the USCIS decided to allow some leeway. If you are an F, M, or J visa holder and your program has ended, you can file a timely application to reinstate your status to have your accrual of unlawful presence suspended while the application is pending.
The USCIS defined timely filing as this:
“For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.”
If your reinstatement application is denied, then the unlawful presence will begin to accrue again. The important takeaway here is that, while your application is pending, you will not accrue unlawful status even if you are no longer in status under F, M, or J visas.