Accrual of unlawful presence can have serious negative consequences to a foreigner in the United States who is not a lawful permanent resident. Unlawful presence accrues when the foreign national stays in the United States longer than the date authorized at the time of admission to the United States, or, if they occur earlier, beginning with the first of either of the following:

• the day after the U.S. Citizenship and Immigration Services finds that the foreign national has violated his or her status, or
• an Immigration Judge orders the person to be deported, excluded or removed from the United States.

Accrual of unlawful presence for more than 180 days bars reentry to the United States for three years (10 years if the accrual is for a year or more). Exceptions are made if the individual has been granted a waiver, but waivers are difficult to obtain.

However, a favorable exception to this unlawful presence accrual rule has been applied to F and M non-immigrants (students) and J non-immigrants (participants in an Exchange Visitor program) by the prior U.S. Immigration and Naturalization Service and by the USCIS since it became part of the Department of Homeland Security in 2003. This favorable rule has been that persons in these non-immigrant categories do not accrue unlawful presence, even if they violate their status, if they are admitted for Duration of Status, unless there is a finding by the USCIS of an immigration violation or the person is subject to an Immigration Judge’s order as described above.

As a result, currently, F, J, and M non-immigrants who are out of status (who have left their school or their Exchange Visitor program, or their school or Exchange Visitor program has concluded) generally do not accrue unlawful presence if they were admitted to the United States for Duration of Status.

That will change starting August 9. The USCIS no longer will permit F, J, and M non-immigrants to remain and overstay their authorized admission in the United States in these circumstances. F, J, and M non-immigrants admitted for Duration of Status, like other non-immigrants in the United States in different classifications, will begin to accrue unlawful presence the day after they are no longer pursuing their course of study or J-1 program, or the day after their course of study or J-1 program has been completed (plus any authorized grace period to depart the United States). This new rule will also apply (beginning August 9) to those F, J, and M non-immigrants who failed to maintain status before August 9.

As of August 9, F, J, and M non-immigrants admitted for Duration of Status now must be sure that they do not accrue unlawful presence, or at least not for more than 180 days.

Significance for employers

For employers, the change in policy means that the ability to employ these individuals could be delayed or impossible if more than 180 days of unlawful presence has accrued. Currently, because unlawful presence is not being accrued, an F, J, or M non-immigrant could be sponsored by an employer for any eligible work visa category. The only limitation is that the individual could not change status to that work visa category, but would have to leave the United States and re-enter under the sponsored work visa category after applying for a visa abroad at a U.S. Embassy or Consulate. Effective August 9, if the person has accrued unlawful presence of more than 180 days, he or she will also have to obtain a waiver of the three- or 10-year bar on re-entry to the United States.