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How to count unlawful presence?

Updated: Feb 13, 2019

Li Law Group - business law, family law, immigration law and criminal defense. This blog site shares general information regarding areas of law including business, tax, immigration, family, and criminal law.

Counting Unlawful Presence Days

In a Policy Memorandum, PM-602-1060.1, published on August 9, 2018, the USCIS outlined when F, J, and M visa holders start counting their unlawful presence in the United States.

F visa holders – international students, their dependents;

J visa holders – exchange visitors, scholars, professors, their dependents;

M visa holders – nonacademic or vocational students, their dependents;

Effective on August 9, 2019, F, J, or M visa holders who failed to maintain their status before August 9, 2018, start accruing unlawful presence based on that failure on August 9, 2018, unless they have already started accruing unlawful presence on the earliest of the following:

1. In the request, application, petition for an immigration benefit, the adjudicator found a violation of non-immigrant status, and the request was denied.

2. Form I-94 expired.

3. An immigration judge has ordered removal, deportation, or exclusion.


F, J, or M visa holders who failed to maintain their status on or after August 9, 2018 start accruing unlawful presence on the earliest of the following:

1. The day after F, J, or M non-immigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;

2. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period (normally 60 days, 8 C.F.R. 214.2(F)(5).(iv)).

- 15 days if the designated school official withdraw you from classes

- No grace period if F-1 students fail to maintain a full course of study without the approval of the designated school official (12 credits for undergraduate students, 9 credits for graduate students).

3. The day after Form I-94 expires;

4. The day after an immigration judge orders the visa holders be excluded, deported, or removed. For F-2, J-2, M-2 non-immigrant dependents (spouse or children), their authorized stay end when F-1, J-1, M-1’s authorized stay is over.

What Happens When You Are Unlawfully Present In The U.S.?

You maybe barred from reentering the United States for:

a) 3 years, if you leave the U.S. after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay and before the commencement of removal proceedings;

b) 10 years, if you depart the United States after having accrued 1 year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or

c) Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.

Can I apply for Waivers or other reliefs from unlawful presence?

It depends on the immigration benefits that you are seeking.


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