On May 10, 2018, United States Citizenship and Immigration Services (USCIS) released a policy memorandum that fundamentally changes the way in which foreign students (F and M visa holders) and exchange visitors (J visa holders) are considered "unlawfully present." The announced changes will take effect beginning August 9, 2018.
The new policy states that any F, J, or M nonimmigrants, along with their dependents, who have been admitted to the United States for duration of status (D/S) who are not already considered "unlawfully present" under existing USCIS policy and who failed to maintain their nonimmigrant status before August 9, 2018 will begin accruing unlawful presence due to that failure beginning on August 9th .
Under the new guidelines, on or after August 9, 2018, any F, J, or M nonimmigrant will begin accruing unlawful presence based on the following:
The above interpretations regarding unlawful presence also apply to Canadian B1/B2 nonimmigrants who are admitted as "non-controlled nonimmigrants."
"Unlawful presence" is an important concept as an individual who has accrued more than 180 days of "unlawful presence" and departs the U.S. is barred from returning to the U.S. for three years. An individual who has been "unlawfully present" for 365 days or more is barred from returning for ten years. Although waivers are possible for certain "barred" individuals, they can be difficult and unpredictable to obtain.