Unlawful Presence Accrual for J-1 Students | Office of Global Initiatives

Change in USCIS Policy: Unlawful Presence Accrual

Summary: Effective August 9, 2018, F and J visa holders will begin to accrue unlawful presence the day after a violation of status, and this may subject them to a 3-year or 10-year bar on returning to the U.S. after they depart.

An individual who is unlawfully present is barred from returning to the U. S.:

For 3 years if unlawfully present for 180 days but less than one year, and departs voluntarily
For 10 years if unlawfully present for one consecutive year or more, or is deported at any time

To repeat, the 3-year bar from returning to the US will apply only if students voluntarily depart the U.S. after an over-stay of less than one year, but the 10-year bar from returning to the US will apply if students depart voluntarily after an over-stay of a year or more or are deported at any time.

Students holding an F or J visa (including dependents) who fail to maintain status on or after August 9, 2018, begin to accrue unlawful presence immediately after:

Failing to pursue the course of study or authorized activity
Engaging in unauthorized activity
Completing the course of study, program, or practical training and any grace period, or
Removal order by an immigration judge
An OPT or STEM extension application is denied but only if it is denied after a student’s 60-day grace period has expired.

Students will not accrue unlawful presence:

During annual vacation, the 30-day period of admission before the program start date, and any authorized grace period
While pursuing an authorized full course of study or authorized reduced course load
During practical training, including allowed periods of unemployment
During a change of level transition process
During authorized H-1B “cap gap” period
While an application for post-completion OPT is pending
During a school transfer transition process
During the time she/he failed to maintain status if reinstatement application is approved

To summarize, as long as students maintain their status during academic semesters, authorized breaks such as summer vacation or transferring between schools, while on approved OPT or during their 60-day grace periods, they will not accrue unlawful presence.

Read the memorandum here.

The New Policy Implication for Students

If any student loses his or her immigration status he or she will start accruing unlawful presence immediately. Unlike in the past, when the accrual of unlawful presence started only when an immigration judge ordered it or when a reinstatement petition to USCIS was denied, now students start to accrue unlawful presence the moment the SEVIS record is terminated. However, a successful reinstatement petition will erase the accrual of days of unlawful presence.

It is extremely important that students maintain their immigration status at all times, as to avoid being subject to this policy and barred from reentering the U.S.

Applying for Reinstatement

The process of reinstatement is much more complicated because unlawful presence continues to accrue while the reinstatement application is pending:

If 180-364 days pass and reinstatement is denied: 3-year bar
If 365+ days pass and reinstatement is denied: 10-year bar
If reinstatement approved: no unlawful presence

We highly advise students in this situation to work with an immigration attorney to discuss if applying for reinstatement or leaving the country is the optimal option. Notice to Appear (NTA), also known as Form I-862, is a document issued by a DHS agent to initiate removal/deportation proceedings. If you receive an NTA you should contact an immigration attorney immediately. NTAs can be issued right after a petition is denied (for example, a request for reinstatement) so students should be mindful that this is a possible outcome and be prepared for it.