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What Do Changes to USCIS' "Unlawful Presence" Definitions Mean for Students and Exchan

The policy memorandum regarding unlawful presence for F and M nonimmigrant students, and J nonimmigrant exchange visitors has been revised and became effective on August 9th 2018. Individuals in F, J and M status will acquire unlawful presence if they do not maintain status as of August 9th 2018. Unlawful presence means an individual is residing in the United States after their status or visa expires and not issued parole.

This update to the policy is crucial for students and exchange visitor to understand as falling out of status could lead them to being banned from the United States for up to 10 years. If an individual is found to be unlawfully present in the United States for more than 180 days but less than a year and exits the US without attending proceedings, they will be banned from entering the United States for 3 years from the date that they left. If an individual is unlawfully present for more than a year, they will be banned for 10 years from the date they left.

Prior to this policy update, students were able to enter the United States for the "duration of status” where they were granted time for flexibility within their program. Students would not be granted unlawful presence until after an immigration benefit application is filed and a USCIS officer finds the student to have violated their status, or if an immigration judge orders their removal.

Students will begin accruing unlawful presence the day after ending their studies or program, after engaging in any activity that is unauthorized or the day after their Form I-94 expires. If a student is not in a full course of study, they will accrue unlawful presence. This is alarming for many because often it is confusing to understand if and when a student is in a “full course of study” due to the alternating units and policies within different academic programs.

These are a few examples of when a F-1 student could fall out of status and acquire unlawful presence under the new policy:

  • Dropping below the required full course of study without a reduced course load authorization

  • Taking more than one online class that contributes to fulfilling a full course of study

  • Taking online courses for an ESL program

  • Working more than 20 hours during school year under CPT or OPT

  • Working a job that is not classified under E-Verify for STEM OPT

  • Not being present in the international student office during the registration period

  • Not completing coursework on time for graduation

  • Failure to report to the international student office during the registration period

  • Working more than 12 months of CPT and OPT at the same education level

If you have any questions regarding unlawful presence for students and exchange visitors, please contact Attorney Nicholas J. Mireles, Esq. at

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