Analysis of USCIS Memo on Unlawful Presence for F, J, and M Nonimmigrants

On May 11, 2018, the U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum that will substantially change the rules regarding unlawful presence (ULP) as they apply to those in F, J, and M status. The new rules are scheduled to go into effect on August 9, 2018.

Background: Authorized Stay, Out of Status, and Unlawful Presence

As explained in the MurthyDotCom NewsBrief, Differences Between Lawful Status, Period of Authorized Stay, & Unlawful Presence” (03.Jun.2013), there are important distinctions between being out of status and unlawfully present. Most significantly, accrual of ULP can result in a three- or ten-year inadmissibility bar.

Background on D/S Admission

A nonimmigrant entering in F, J, or M status ordinarily is admitted for duration of status, listed as “D/S” in the I-94 record. As there is no specific date listed, those admitted for D/S historically have only begun to accrue ULP upon a formal finding by the DHS of a status violation or, after being ordered excluded, deported, or removed by an immigration judge or the Board of Immigration Appeals (BIA). The new memorandum radically changes this analysis.

ULP to Begin Following Any Status Violation, Effective 09.Aug.2018

Under the new memo, beginning August 9, 2018, anyone granted D/S who is in F, J, or M status will begin to accrue ULP under 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 engaging in any unauthorized activity
  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 being ordered excluded, deported, or removed

In situations where the individual is admitted to a specific date in the I-94 record, ULP will apply in any of the above situations, or following the expiration date of the I-94.

New Rules Will Create Uncertainty, Likely Lead to Draconian Penalties

One of the primary problems with this new policy memo is that it is entirely possible for a person to commit a status violation without realizing it. In fact, there are plenty of situations in which determining whether a status violation has occurred can be subjective.

Take this hypothetical, for instance: An F-1 student graduates with a degree in biochemistry. The student applies for OPT to perform tech consulting services for a company that develops pharmaceuticals. The designated school official (DSO) at the university from which the student graduated determines that this position is sufficiently related to the degree in biotechnology, and authorizes the OPT.

Months later, the student applies for a change of status to H1B. The USCIS determines that the position was not sufficiently related to the degree, and therefore the student committed a status violation by accepting the position. By the time this finding is made by the USCIS, more than a year has elapsed since the student started the OPT position. This results in the student retroactively accruing ULP from the date s/he started working in the new position, meaning that the individual now must depart the U.S. and will be subject to a ten-year bar.


This new memo continues the recent trends that have been taking place in the context of immigration. Consistent with the “Buy American, Hire American” directive, this memo seeks to tighten enforcement of existing immigration policies and create a harsher environment for foreign nationals coming to the United States. The USCIS is accepting public comments on this memo until June 11, 2018.


Copyright © 2018, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.