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USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

In May of this year, US Citizenship and Immigration Services (USCIS) issued policy guidance changing how Unlawful Presence – a specific type of time spent out of status which can cause people to incur reentry bars upon leaving – was calculated for F, M and J visa holders.

As we explained here, individuals on these visas would now begin building up unlawful presence for purposes of triggering the reentry bars immediately when the expiration date on the relevant program form is reached, and immediately upon violation of status if this occurs earlier. If the overstay from date of program completion or violation of terms of status has already happened before the August 9 effective date, unlawful presence would be counted from August 9. If there has been a determination that an F-1 or J-1 is out of status by an immigration officer or judge, the count still begins on the date of that determination.

USCIS has now revised that guidance to account for a situation where a foreign national F, J or M visa holder may be out of status, but where steps are underway which may bring them back into lawful status.

An F, J or M visa holder whose status has lapsed or who has otherwise failed to maintain their status may file an application to “reinstate” their status, with the recommendation of the school DSO. This must be done within five months of the lapse (only exceptional circumstances can excuse this deadline) and must show an absence of disqualifying factors…for instance, that they have never engaged in unlawful employment.

While the original policy guidance took no account of the reinstatement process, effectively counting unlawful presence from the moment they fell out of F, J or M status regardless of reinstatement eligibility, the revised rule makes an exception for F, J or M foreign nationals who have filed for reinstatement within five months of the lapse.

While there is no “exceptional circumstances” exemption to the requirement that the reinstatement application be filed within five months of the lapse in the policy guidance, an individual whose reinstatement request is ultimately approved won’t be viewed as accruing unlawful presence at all. This is true even if the request was filed after five months and the “exceptional circumstances” argument has been accepted.

Under this revised guidance, an F, J or M foreign national with a timely-filed reinstatement request – one filed within five months of the lapse – avoids accrual of unlawful presence time for as long as the reinstatement request remains pending even if the request is ultimately denied. If the request is approved, there is no unlawful presence counted against the foreign national in any event.