Policy Memo on “Unlawful Presence for International Students” [2021 Update]


Since the last of this blog article in 2018, the rules surrounding unlawful presence and reinstatement policy for F1 and M visa students have changed. As of 2021, USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, international students entered the United States for authorized duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.

Furthermore, for non-immigrant visa holders who want to change their status to F1 while in the U.S., they do not have to “bridge-the-gap” as required prior to 7/20/2021. In other words, they no longer need to extend or change their status (or maintain their status) while the F1 change of status application is pending, as long as their non-immigrant status is unexpired at the time of filing the F1 change of status application.

As immigration lawyers, this policy change is definitely welcoming. It not only saves money for students but time involved in the application process. For more information on the previous USCIS policy, feel free to check out the information below for your reference only.

Old USCIS Policy – Unlawful Presence for International Students [2018-2020]

Today, the USCIS published a final revised policy memorandum related to the calculation of unlawful presence for international students in the F, M and J visa categories.  Under this revised final policy memo, effective 8/9/2018, international students and exchange visitors who fall out of status would accrue unlawful presence unless they timely file for reinstatement. revised policy memorandum

How to timely file a F1 reinstatement application?

If you last entered the U.S. as a F or M student or J exchange visitor and for whatever reasons that you are or will be out of status, you should file for an reinstatement application within 5 months of you being out of your status.  Once you filed for an reinstatement, the unlawful presence will be suspended while the application is pending with the USCIS or Department of States (for J visa exchange visitors).

What if I’m out of status beyond the 5 months window?

Under the new policy memo, if you are out of status or overstayed your student visa longer than 5 months and you have not filed an reinstatement application or do not have any other pending visa applications, you are deemed to be out of status and have accrued unlawful presence. Unlawful presence in this context is when you are in the U.S without a valid visa or have violated your authorized stay. In that case, if you ever leave the U.S., you will be barred from entering the U.S. again for either 3 or 10 years depending on the length of time of your unlawful presence.

If you file for a reinstatement application and it is ultimately approved, you will generally not accrue unlawful presence while out of status.  However, if your reinstatement application is denied, the accrual of unlawful presence will resume on the day after the denial.

What happens if I timely filed a reinstatement application but it’s still pending after 5 months?

In that case, according to the revised final policy memo, your unlawful presence is suspended meaning you are still in status as long as your application is pending.

Do I have to leave if my reinstatement application is denied?

If your reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.  To avoid accruing more unlawful presence that could lead you to a bar to return to the U.S. in the future, you should depart the U.S. immediately.

When should I seek help from an immigration lawyer?

The accrual of unlawful presence is a serious matter because it will potentially prohibit you from returning to the U.S. either temporary or permanently.  If you are in such a situation, you should seek help from an experienced immigration lawyer before departing the U.S.  Depending on your situation and immigration history and future plans, there might be immigration options for you to return to the U.S.  Call 773-687-0549 or contact Cipolla Law Group online to schedule a consultation. We will try our best to assist you to return to the U.S.  Our immigration law firm is located in downtown Chicago.