Accruing unlawful presence in the United States can have serious consequences under immigration law. Once the expiration date on your Form I-94 passes, or if you fail to maintain the conditions of your visa, you begin accumulating unlawful presence. This can result in harsh penalties, including long-term bans from re-entering the United States. For students and exchange visitors, maintaining lawful status can be particularly challenging. To address these complexities, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance through a policy memorandum clarifying how unlawful presence is counted for certain visa holders.
Student Visas: F-1 and M-1 Categories
The memorandum primarily affects those holding student visas, which include two major categories — F-1 and M-1.
- The F-1 visa applies to students enrolled in academic institutions such as colleges, universities, or secondary schools.
- The M-1 visa is designed for those attending vocational or technical schools.
While studying in the U.S. under these visas offers valuable opportunities, there is no direct path from a student visa to permanent residency. Many students mistakenly remain in the country after completing their studies while attempting to change or adjust their status, which can cause them to fall “out of status” and begin accruing unlawful presence.
Exchange Visitor Visa: J-1 Category
The J-1 visa, or exchange visitor visa, is another nonimmigrant category covered by the USCIS memorandum. This visa supports individuals participating in approved exchange programs and requires sponsorship from an educational or cultural exchange organization rather than an employer.
Although the J-1 visa provides many benefits, it also carries a two-year home residency requirement. After completing their program, J-1 holders must return to their home country for at least two years before applying for another U.S. visa or green card. While it’s possible to request a waiver for this requirement, many individuals accidentally overstay their visa while waiting for approval, which can trigger unlawful presence issues.
Unlawful Presence vs. Out of Status: What’s the Difference?
Unlawful presence occurs when a person remains in the U.S. beyond their authorized period of stay or enters the country without authorization. Even short periods of unlawful presence can lead to re-entry bans — typically a three-year bar for overstays exceeding 180 days, and a ten-year bar for overstays longer than one year.
Being “out of status” is different. This occurs when an individual violates the terms of their visa — for example, when an F-1 or M-1 student works without authorization, or transfers to a new program without notifying USCIS. While being out of status is serious, it doesn’t automatically result in an unlawful presence bar unless the violation remains unaddressed.
USCIS Policy Changes and Reinstatement Options
In May 2018, USCIS released a memorandum tightening its interpretation of unlawful presence for F, M, and J visa holders as part of a broader effort to enhance public safety and reduce visa overstays. Under this policy, students and exchange visitors would begin accruing unlawful presence immediately upon violating their status, even without a formal determination from USCIS.
However, after public feedback, USCIS revised its policy to allow more flexibility. The updated guidance provides that if an F-1, M-1, or J-1 visa holder files a timely application to reinstate their status, their unlawful presence will be suspended while the application is pending.
USCIS defines a “timely” reinstatement application as one filed within five months of falling out of status. According to the revised memorandum:
“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. The accrual of unlawful presence is suspended when the reinstatement application is filed within this five-month period and remains pending with USCIS.”
If USCIS later denies the reinstatement, unlawful presence will resume from the date of the decision. This means that while your reinstatement application is under review, you will not accrue additional unlawful presence, even if your original visa status has expired.
How Green Card Link Can Help You
If you hold an F-1, M-1, or J-1 visa and believe you have fallen out of status, it’s crucial to act quickly. Immigration law is complex, and even minor mistakes can have lasting consequences on your ability to remain or return to the United States.
At Green Card Link, its immigration attorneys have extensive experience helping students and exchange visitors restore and maintain lawful immigration status. Whether you need to file a reinstatement application, request a waiver, or understand how recent USCIS policies affect you, an immigration attorney at Green Card Link can guide you through every step with clarity and precision.
Don’t wait until your situation becomes more difficult to fix — contact Green Card Link today to schedule a consultation and protect your future in the United States.