August 2020 Update:
The litigation around the USCIS's unlawful presence policy ended. The USCIS August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1) is no longer in effect. USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.
May 2019 Update: Due to a nationwide preliminary injunction, USCIS is preliminarily enjoined (stopped) from applying the policies related to unlawful presence published in the August 2018 policy memorandum to F, J, and M nonimmigrants.
Effective August 9, 2018, USCIS changed the way individuals in F and J status can incur unlawful presence in the United States.
"To reduce the number of overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under INA 212(a)(9)(B) and INA 212(a)(9)(C)(i)(I), USCIS is now changing its policy on how to calculate unlawful presence for F-1, J-1, and M-1 nonimmigrants, and their dependents (F-2, J-2, and M-2)."
August 9, 2018 Policy Memorandum
If you fail to maintain your nonimmigrant (F or J) status, you will begin to accrue unlawful presence the day after:
- you engage in an unauthorized activity;
- your grace period ends (30-days for J-1 or 60-days for F-1 after degree completion);
- your Form I-94 expires, if you were admitted with a date-specific expiration (without "D/S"); or
- an immigration judge orders you excluded, deported, or removed.
The following are just a few examples of how you could jeopardize your nonimmigrant (F or J) status in the United States:
- Failing to report a change in your U.S. residential address, phone number, email address, or name within 10 days. (Email your updates to your international advisor in ISP, ISS, or JPL IO.)
- Working without authorization. This includes:
- Gig economy jobs, such as driving for ride share companies like Uber or Lyft, dog-care services through Wag or Rover, Amazon Mechanical TURK, etc.
- Freelance activities, including personal/private tutoring, babysitting, dog walking, and other activities not explicitly authorized by your ISP Advisor or not specifically related to your field of study
- F-1 CPT: Working beyond the specific dates authorized by ISP, as printed on the I-20.
- F-1 OPT: Accruing more than 90 days of unemployment on F-1 OPT after academic completion.
- F-1 STEM OPT:
- Accruing more than 150 days of unemployment (inclusive of both OPT and STEM).
- Failing to submit timely I-983 training plan updates and evaluations. NOTE: Reporting deadlines are critical. Mark your calendar and submit your I-983 updates within one month BEFORE your 12-month anniversary on STEM and one month BEFORE your 24-month anniversary on STEM.
- J-1 Student: Failing to start Academic Training (employment) within 30 days of academic completion.
- Remaining in the United States beyond the period permitted by your F or J status.
- If you are unlawfully present for more than 180 days but less than 1 year, you will be barred from returning to the United States for 3 years.
- If you are unlawfully present for 1 year or more, you will be barred from returning to the United States for 10 years.
- People subject to the unlawful presence bars are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence.
Yes. If you have an F-2 or J-2 dependents, please advise them accordingly.
We cannot cover all situations in this notice. If you are not sure about a situation, ask your International Offices advisor.
- USCIS Policy Memorandum on Accrual of Unlawful Presence and F, J, and M Nonimmigrants
- USCIS Unlawful Presence and Bars to Admissibility
- ISP Maintaining Status
- Presentation by attorneys from Stone Grzegorek & Gonzalez, LLP on August 23, 2018: Unlawful Presence for F and J Nonimmigrants