A U.S. Citizenship and Immigration Services (USCIS) policy memorandum concerning accrual of unlawful presence for foreign students and exchange visitors (F, M, and J nonimmigrants) recently became effective. While, previously, most foreign students only started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or, on the day after an immigration judge ordered the applicant excluded, deported, or removed, the new policy memorandum provides that F, J, and M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018, started accruing unlawful presence based on that failure on August 9, 2018.
Additionally, F, J, or M nonimmigrants that fail to maintain status on or after August 9, 2018, begin accruing unlawful presence on the earliest of the following: (1) 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; (2) day after completing the course of study or program; (3) day after the Form I-94 expires, if the student was admitted for a date certain; or (4) day after an immigration judge orders the alien excluded, deported, or removed.