Accrual Of Unlawful Presence Or F, J, And M Nonimmigrants

The USCIS Memos of August 9, 2018 (PM-602-1060.1) and May 10, 2018 (PM-602-1060) both titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” was enjoined nationwide on February 6, 2020 (See Guilford College v. Wolf, 2/6/20). On August 3, 2020, USCIS withdrew its appeal of the Court’s injunction in effect making the preliminary injunction permanent.

This means that the application of duration of status (D/S) rules for F, J, and M Nonimmigrants prior to the above memorandum are reinstated. USCIS should return to following the former Immigration and Naturalization Service’s (INS) various policies on the accrual of unlawful presence.

Former Immigration and Naturalization Service’s (INS) various policies stated foreign students and exchange visitors (F and J nonimmigrants, respectively) who were admitted for, or present in the United States in, duration of status, started accruing unlawful presence only after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or an immigration judge ordered the foreign national student or exchange visitor excluded, deported, or removed (whether or not the decision is appealed), whichever comes first.

Regardless, F, J, and M nonimmigrants should maintain their status as failure to do so could have other negative consequences other than the accrual of unlawful presence.