On August 9th, 2018 at 10pm EST, U.S. Citizenship and Immigration Services (USCIS) issued the final policy memorandum that changes how unlawful presence will be calculated for those in F, J, and M status. The guidance was published after considering feedback received during a 30-day public comment period. The final version of the memo provides the same guidance as the original memo with one change.

Under the final guidance, the accrual of unlawful presence will be suspended if an F or M nonimmigrant timely files a reinstatement application and while the application is pending with USCIS. A timely reinstatement application is one where the individual has not been out of status for more than 5 months at the time of filing.

The memo also notes that even if the application was not filed within the 5 month window, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status. If the reinstatement application is denied, accrual of unlawful presence will begin the day after the denial is issued.

Previously, F-1 students who were admitted in duration of status (D/S) did not begin accruing unlawful presence until

• The day after USCIS formally found a status violation while adjudicating a request for another immigration benefit (example, change of status request from F-1 to H-1B), or
• The day after an immigration judge ordered the individual excluded, deported, or removed (whichever came first)

Under the current memo, effective August 9, 2018, USCIS provides the following guidance on when unlawful presence will accrue:

• For F, J, or M nonimmigrants who failed to maintain status before August 9, 2018, unlawful presence will begin to accrue on August 9, 2018
• For F, J, or M nonimmigrants who failed to maintain status on or after August 9, 2018, unlawful presence will begin to accrue on the earliest of any of the following:

1. The day after the individual no longer pursues the course of study or the
   authorized activity, or the day after he or she engages in an unauthorized activity (For instance, those who engaged in”Day 1 CPT” under a program not meeting the proper requirements);

2. The day after completing the course of study or program (including any authorized
   practical training plus any authorized grace period;

3. The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a
   date certain; or

4. The day after an immigration judge orders the alien excluded, deported, or removed
   (whether or not the decision is appealed).

Note that USCIS or an immigration judge will still have to make a determination that a status violation occurred. Once that determination is made, unlawful presence will be calculated retroactively from when the violation occurred. Again, if the violation took place prior to August 9th, unlawful presence will be calculated from August 9th.

USCIS will host a national stakeholder engagement regarding this policy memorandum on August 23rd. Submit your email address to the USCIS Public Engagement subscription service in order to receive the invitation for this stakeholder engagement.