United States Citizenship and Immigration Services (USCIS) Policy Memorandum on the ‘Accrual of Unlawful Presence and F, J, and M Nonimmigrants’ dated August 9, 2018, has brought a major shift on the subject of when F, J and M nonimmigrants begin accruing unlawful presence. Prior to this Policy Memorandum, such nonimmigrants started accruing unlawful presence only in the following scenarios:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after the Form I-94, Arrival/Departure Record, expired, if the nonimmigrant was admitted until a specific date; or
• The day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed).

As a consequence of the Policy Memorandum dated August 9, 2018, any F, J or M nonimmigrant begins to accrue unlawful presence from the date he/she fails to maintain nonimmigrant status on the earliest of any of the following:

• The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
• The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
• The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).
• If the F, J or M nonimmigrant was not maintaining his/her stay as detailed above on August 9, 2018; then, s/he would start accruing unlawful presence from August 9, 2018.
• The F-2, J-2 and M-2 dependents will also start accruing unlawful presence on the same day the F-1, J-1 or M-1 nonimmigrant starts accruing unlawful presence.

The Memorandum also clarifies what activities are permissible and not considered to be violation of status by an F, J or M nonimmigrant. Violation of status/failure to maintain status is a wide term which includes a wide range of activities within its purview. Some examples include engaging in Curricular Practical Training (CPT) or Optional Practical Training (OPT) without proper authorizations or in violation of the regulations; or failing to enroll in the full course of study without obtaining requisite approvals. This illustration is not exhaustive – PDF version of this policy memorandum can be found here.

We urge F, J and M nonimmigrants to strictly follow the regulations. Additionally, if any course is offered or recommended by friends or acquaintances and the course seems inconsistent with regulations or if the benefits offered seem in violation of the underlying regulations, s/he should immediately consult a qualified and experienced Immigration Attorney within the U.S. to potentially avoid accruing unlawful presence and / or jeopardize their future prospects in the U.S.