The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added two sections of the Immigration and Nationality Act to establish penalties for "visa overstays" and being "unlawfully present" in the United States, effective on April 1, 1997:
- INA 222(g) [8 USC 1202(g)] "visa overstays" and
- INA 212(a)(9)(B) [8 USC 1282(a)(9)(B)] "unlawfully present"
This page discusses how "unlawful presence" is counted for individuals who have been admitted to the United States for "duration of status" (D/S), such as F students and J exchange visitors.
This page is for informational purposes only and does not constitute legal advice. Advisers should counsel students and exchange visitors to consult an experienced immigration lawyer if they have questions about how the unlawful presence rules impact their individual situations.
Summary of USCIS unlawful presence policy for D/S nonimmigrants
INA 212(a)(9)(B) [8 USC 1282(a)(9)(B)], titled "Aliens unlawfully present," creates bars on admission to the United States for specific periods of time on "any alien" (other than an lawful permanent resident) who accumulates more than a certain number of days of "unlawful presence." For this purpose, "an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled."
- 3-year bar. An individual who accumulates more than 180 days but less than 1 year of unalwful presence is subject to a three-year bar.
- 10-year bar. An individual who accumulates 1 year or more of unalwful presence is subject to a ten-year bar.
However, the statute does not further define the phrase, "after the expiration of the period of stay authorized by the Attorney General," which is very important because it is the "trigger" that begins the count of unalwful presence. The fact that F and J nonimmigrants are admitted for D/S rather than until a specific date further complicated the analysis of what constituted "the period of stay authorized by the Attorney General" for determining when the count of unlawful presence begins.
USCIS stepped into this interpretive gap through a series of memoranda and field manual entries communicating a policy that distiguishes between a "nonimmigrant status violation" and "unlawful presence." This policy can be summarized as:
For F and J nonimmigrants admitted for duration of status (D/S) but who subsequently violated their F or J status, unlawful presence is not counted towards applicability of the 3 or 10-year bars unless:
- USCIS determines in the course of adjudicating an application for an immigration benefit that the alien violated his or her nonimmigrant status. In this case, unlawful presence begins to accrue “on the day after the request is denied,” not on the day the status violation occurred; or
- An immigration judge finds in the course of exclusion, deportation or removal proceedings that the alien violated his or her nonimmigrant status In this case, unlawful presence begins to accrue “the day after the immigration judge’s order,” not on the day the status violation occurred or the removal proceedings are initiated.
For nonimmigrants admitted until a "date certain" on their Form I-94, unlawful presence also begins to accumulate the day following their I-94 expiration date, in addition to the occurrence of either of the above two events. There are a number of important statutory and policy exceptions.
See USCIS policy at:
- USCIS Memo: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I),“ Neufeld, D.; Scialabba, L.; Chang, P. (May 6, 2009)
- AFM 40.9.2 - USCIS guidance on unlawful presence
- 8 USCIS PM O.6 - Effect of Seeking Admission Following Accrual of Unlawful Presence
Remember that being "out of status" and being "unlawfully present" are two different concepts and conditions. A violation of nonimmigrant status still puts an individual "out of status" and subject to removal from the United States, even though "unlawful presence" may not have started being counted. Advisers should counsel students to consult an experienced immigration lawyer if they have questions about or need strategies to deal with unlawful presence and status violations in their individual situation.
2018 challenges to the USCIS interpretation of unlawful presence
On May 11, 2018 during the Trump-Pence administration USCIS published a draft policy memorandum and accepted public comments until June 11, 2018. NAFSA submitted a comment letter on May 24, 2018. On August 9, 2018, the USCIS Feedback Updates page indicated that USCIS received 297 comments during the comment period, and that it was "reviewing your comments and will consider them before issuing final guidance." USCIS then published a final policy memorandum late that same evening.
The original USCIS new release stated that, "[t]his policy aligns with President Trump's Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018." Under the memo, unlawful presence would have begun to accrue:
- the day after a status violation, if the violation occurred on or after August 9, 2018
- on August 9, 2018, if the violation occurred prior to August 9, 2018
On October 23, 2018 a group of colleges and universities filed suit in Federal court to challenge USCIS's new F, M, and J unlawful presence policy. The plaintiffs asked the court to declare unlawful and vacate the August 8, 2018 policy memo, and to enjoin the enforcement or application of the memo. The case was Guilford College v. McAleenan, 1:18-cv-00891, (M.D.N.C.). See the case docket on Court Listener. Note: The case was originally named Guilford College v. Nielsen because Kirstjen Nielsen was the Secretary of Homeland Security at the time the lawsuit was filed. She resigned as DHS Secretary on April 7, 2019 and Kevin McAleenan was named Acting Secretary.
On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo. The court's order stated:
"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."
On April 3, 2020 DHS appealed to the Fourth Circuit Court of Appeals, but on July 31, 2020 DHS filed a motion to dismiss its own appeal of the lower court's decision. The appeals court granted that motion and dismissed the appeal on August 3, 2020.
Following the Guilford College ruling, USCIS returned to applying its prior policy guidance based on its unlawful presence memo issued on May 6, 2009, incorporated into the USCIS Adjudicator's Field Manual at AFM Chapter 40.9.2. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.
Some recent confusion on the state of USCIS unlawful presence policy
The current version of USCIS' page Unlawful Presence and Inadmissibility states:
"... if you are admitted for duration of status (D/S) and your Form I-94 is marked “D/S”, then you may stay in the United States for the duration of your program, course of study, or temporary work assignment to the United States, plus any additional grace periods that may be authorized afterward. Nonimmigrants admitted for duration of status generally begin accruing unlawful presence the day after their status ends, if they remain in the United States. Similarly, if you seek and are granted an extension of your immigration benefit, your I-94 should be updated to reflect your lawful presence." (emphasis added)
The language regarding D/S was changed in a September 05, 2024 page edit during the prior Biden administration (see this WayBack Machine capture of the page showing the 09/05/24 version). Prior to that, a June 22, 2022 edit had contained this language (see this WayBack Machine capture of the page showing the 06/22/22 version):
"In the Adjudicator’s Field Manual (AFM) Chapter 40.9.2 (PDF, 1017.74 KB), we outline when you are considered to be in a “period of stay authorized.” If you are in the United States maintaining lawful status, meet the requirements for an exception, or are otherwise considered to be in a period of stay authorized by the DHS secretary, then you do not accrue unlawful presence."
Both the 01/25/2025 and 09/05/2024 versions, though, also have a “More Information about Unlawful Presence and the Inadmissibility section (the last accordion on the page), which states:
"You can find more information on unlawful presence in AFM Chapter 40.9.2. You can also find additional information about grounds of inadmissibility in the USCIS Policy Manual."
AFM Chapter 40.9.2 is the codification of the 2009 policy memo that consolidated ULP and overstay guidance. And the USCIS Policy Manual still says, "F-1 students admitted for duration of status who violate the terms of their status, begin to accrue unlawful presence on the day after USCIS or an immigration judge determines that they have violated their nonimmigrant status," and a footnote that that Policy Manual entry cites AFM Chapter 40.9.2. The continued reference to AFM 40.9.2 and USCIS Policy Manual on the page may indicate that the other language on the USCIS page could be an inartful summary.
This page is for informational purposes only and does not constitute legal advice. Advisers should counsel students and exchange visitors to consult an experienced immigration lawyer if they have questions about how the unlawful presence rules impact their individual situations.