On August 9, 2018, the United States and Immigration Services (USCIS) published a revised final policy memorandum related to unlawful presence. Effective August 9, 2018, nonimmigrants with F (student) and M (vocational student) visas who fall out of status and file in a timely manner for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.
This policy memorandum supersedes one from May 10, 2018 that changed the way USCIS calculates unlawful presence for nonimmigrants in F, J (exchange visitor), and M status. The new policy memorandum was issued after considering feedback during a 30-day public comment period that ended June 11, 2018.
According to this final policy memorandum, USCIS defines a timely reinstatement application for F or M status as one where the student has not been out of status for more than five (5) months at the time of filing. The moment an application to reinstate F or M status is filed before the five (5) month period is when accrual of unlawful presence is suspended. However, if the reinstatement application is ultimately denied, the accrual of unlawful presence resumes on the day after the denial.
Additionally, the Department of Status (DOS) administers the J-1 exchange visitor program. If DOS approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status to the time he or she was reinstated.
Please do not hesitate to contact our offices for any questions or concerns you may have regarding this matter.