• Insights

USCIS Issues Revised Guidance on Unlawful Presence for F, J and M Nonimmigrants

August 10, 2018

insight-news-default

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

At a glance

  • USCIS has clarified that an F-1 or M-1 foreign student who files a timely request for reinstatement of their status after a violation will not accrue unlawful presence while the request is being adjudicated.
  • A J-1 exchange visitor will not be deemed to have accrued unlawful presence if he or she files a timely request for reinstatement after a status violation and the request is approved.

The situation

As we have reported, USCIS has implemented a new policy under which F, J and M nonimmigrants and their dependents will automatically begin to accrue unlawful presence if they violate the terms of their nonimmigrant status. In a revision to the policy issued late Thursday, the agency has clarified several key points:

  • An F-1 or M-1 student who files a timely request for reinstatement of status will not accrue unlawful presence while their request is being adjudicated. An application is considered timely if it is submitted within five months of the status violation. If the application is approved, the F or M nonimmigrant will resume lawful status. If it is denied, the F or M nonimmigrant will resume the accrual of unlawful presence.
  • A J-1 nonimmigrant will not be considered to have accrued unlawful presence if he or she submits a request for reinstatement to the State Department and it is approved.

Unlawful presence under the new policy

As of August 9, 2018, USCIS will consider an F, J or M nonimmigrant who violates the terms of his or her status to be unlawfully present and will calculate unlawful presence from the day after the status violation occurs. For status violations that occurred before the effective date of the policy, USCIS will calculate unlawful presence from August 9, 2018.  Because of the significant consequences of unlawful presence, foreign students, exchange visitors and their employers must take all steps necessary to ensure compliance with F, J and M program rules. 

A foreign national who has been unlawfully present for more than 180 days or one year or more is subject to a three-year or ten-year bar on reentering the United States and will not be eligible to apply for a visa, admission or adjustment of status to permanent resident unless they are granted a waiver of inadmissibility or another form of relief.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

Country / Territory

  • United StatesUnited States

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Fragomen news

Comment on DHS Proposed Rule on Discretionary Employment AuthorizationLearn more

Blog post

How the Middle East Is Building Workforce Mobility Resilience Amid Regional Disruption

Partner Shayan Sultan discusses how geopolitical disruption, intensifying talent competition and digital transformation are reshaping workforce mobility and compliance across the Middle East.

Learn more

Awards

Partner Karolina Schiffter Recognised in Lexology Index: Thought Leaders Global Elite 2027

Partner Karolina Schiffter is recognised in the Lexology Index: Thought Leaders Global Elite 2027 report.

Learn more

Blog post

Canada’s Immigration Dual Reality: Narrower Access, Persistent Demand

Partner Jack Kim discusses how Canada’s increasingly selective and complex immigration system is affecting talent access, retention and long-term workforce planning for employers.

Learn more

Blog post

UK Temporary Shortage List Review: What the Migration Advisory Committee's Recommendations Mean for Employers

UK Government Affairs Strategy Director Shuyeb Muquit explores what the recommendations mean, what’s still uncertain and what employers should be watching next

Learn more

Blog post

A1-Bescheinigung für Geschäftsreisen und Entsendungen: Was Arbeitgeber wissen müssen

In this blog, Senior Manager Katharina Vorländer explains when employers need an A1 certificate for employees traveling or working temporarily within Europe, the application process and how timely planning can help manage social security compliance risks.

Learn more

Awards

Fragomen Retains Band 1 Ranking & Receives Four Individual Rankings in Chambers High Net Worth 2026 Guide

Fragomen and UK team members are ranked in the “Immigration: High Net Worth Individuals – UK-wide” category of the Chambers High Net Worth 2026 Guide.

Learn more

Blog post

Establishing a Business Presence in Switzerland: Key Considerations for Employers

In this blog, Director Ana Bessa Santos explores what Swiss authorities expect from employers when assessing work permit applications—including why a well-developed business plan, realistic growth projections and evidence of a genuine operational presence are critical to supporting both initial applications and future permit renewals.

Learn more

Media mentions

Personnel Today: Migration Committee Proposes to Cut 24 Occupations From New Shortage List

Partner Louise Haycock discussed the Migration Advisory Committee’s Temporary Shortage List recommendations and the need for clear workforce plans and transitional arrangements.

Learn more

Media mentions

Business Insider: 3 Lawyers React to Trump's New Limits on Student Visas

Counsel Brian Hunt discusses how proposed changes to F-1 student visas could create uncertainty for international students transitioning to the US workforce.

Learn more

Media mentions

Deutscher AnwaltSpiegel: Rechtliche Risiken bei Mitarbeitereinsätzen aus dem Ausland

Senior Manager Katharina Vorländer explains how employers and clients can reduce legal risks during cross-border employee assignments in Germany.

Learn more

Blog post

Mainland vs. Free Zone in the UAE: Choosing the Right Company Structure in 2026

Senior Manager Zak Hynes explores the key factors businesses should consider when establishing a presence in the UAE—from operating model and visa requirements to banking, office needs and long-term growth plans—in our new blog. The right structure is the one that best supports your business strategy, not simply the lowest upfront cost.

Learn more

Fragomen news

Comment on DHS Proposed Rule on Discretionary Employment AuthorizationLearn more

Blog post

How the Middle East Is Building Workforce Mobility Resilience Amid Regional Disruption

Partner Shayan Sultan discusses how geopolitical disruption, intensifying talent competition and digital transformation are reshaping workforce mobility and compliance across the Middle East.

Learn more

Awards

Partner Karolina Schiffter Recognised in Lexology Index: Thought Leaders Global Elite 2027

Partner Karolina Schiffter is recognised in the Lexology Index: Thought Leaders Global Elite 2027 report.

Learn more

Blog post

Canada’s Immigration Dual Reality: Narrower Access, Persistent Demand

Partner Jack Kim discusses how Canada’s increasingly selective and complex immigration system is affecting talent access, retention and long-term workforce planning for employers.

Learn more

Blog post

UK Temporary Shortage List Review: What the Migration Advisory Committee's Recommendations Mean for Employers

UK Government Affairs Strategy Director Shuyeb Muquit explores what the recommendations mean, what’s still uncertain and what employers should be watching next

Learn more

Blog post

A1-Bescheinigung für Geschäftsreisen und Entsendungen: Was Arbeitgeber wissen müssen

In this blog, Senior Manager Katharina Vorländer explains when employers need an A1 certificate for employees traveling or working temporarily within Europe, the application process and how timely planning can help manage social security compliance risks.

Learn more

Awards

Fragomen Retains Band 1 Ranking & Receives Four Individual Rankings in Chambers High Net Worth 2026 Guide

Fragomen and UK team members are ranked in the “Immigration: High Net Worth Individuals – UK-wide” category of the Chambers High Net Worth 2026 Guide.

Learn more

Blog post

Establishing a Business Presence in Switzerland: Key Considerations for Employers

In this blog, Director Ana Bessa Santos explores what Swiss authorities expect from employers when assessing work permit applications—including why a well-developed business plan, realistic growth projections and evidence of a genuine operational presence are critical to supporting both initial applications and future permit renewals.

Learn more

Media mentions

Personnel Today: Migration Committee Proposes to Cut 24 Occupations From New Shortage List

Partner Louise Haycock discussed the Migration Advisory Committee’s Temporary Shortage List recommendations and the need for clear workforce plans and transitional arrangements.

Learn more

Media mentions

Business Insider: 3 Lawyers React to Trump's New Limits on Student Visas

Counsel Brian Hunt discusses how proposed changes to F-1 student visas could create uncertainty for international students transitioning to the US workforce.

Learn more

Media mentions

Deutscher AnwaltSpiegel: Rechtliche Risiken bei Mitarbeitereinsätzen aus dem Ausland

Senior Manager Katharina Vorländer explains how employers and clients can reduce legal risks during cross-border employee assignments in Germany.

Learn more

Blog post

Mainland vs. Free Zone in the UAE: Choosing the Right Company Structure in 2026

Senior Manager Zak Hynes explores the key factors businesses should consider when establishing a presence in the UAE—from operating model and visa requirements to banking, office needs and long-term growth plans—in our new blog. The right structure is the one that best supports your business strategy, not simply the lowest upfront cost.

Learn more
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsMagellan SeriesImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcasts & Videos
  • Spotlights
    Travel and Mobility Considerations: Situation in the Middle EastNavigating Immigration Under the Second Trump AdministrationImmigration Matters: Your U.S. Compliance RoadmapCenter for Strategy and Applied InsightsVietnamese ImmigrationView More
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Magellan Series
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts & Videos

Spotlights

  • Travel and Mobility Considerations: Situation in the Middle East
  • Navigating Immigration Under the Second Trump Administration
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Center for Strategy and Applied Insights
  • Vietnamese Immigration
  • View More

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Important Updates
Important Updates
August 3, 2026 | European UnionEuropean Union/Schengen Area: Internal Schengen Border Checks Situation
August 4, 2026 | CanadaCanada: Ontario Immigrant Nominee Program Redesign; Phase 1 Launches Workforce Priority Stream
August 4, 2026 | United StatesComment on DHS Proposed Rule on Discretionary Employment Authorization
August 3, 2026 | AustraliaAustralia: New Processing Priorities for Certain Visas Announced
August 3, 2026 | ColombiaColombia: Processing Delays and Increased Scrutiny Affecting Work Visa Applications
August 3, 2026 | European UnionEuropean Union/Schengen Area: Internal Schengen Border Checks Situation
August 4, 2026 | CanadaCanada: Ontario Immigrant Nominee Program Redesign; Phase 1 Launches Workforce Priority Stream
August 4, 2026 | United StatesComment on DHS Proposed Rule on Discretionary Employment Authorization
August 3, 2026 | AustraliaAustralia: New Processing Priorities for Certain Visas Announced
August 3, 2026 | ColombiaColombia: Processing Delays and Increased Scrutiny Affecting Work Visa Applications
August 3, 2026 | European UnionEuropean Union/Schengen Area: Internal Schengen Border Checks Situation
Subscribe

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • AI Transparency Statement
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • AI Transparency Statement
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • TikTok
  • Twitter

© 2026 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.