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Date: Dec 2018

USCIS Implements New Policy on Calculating ‘Unlawful Presence’ for F Students and J Exchange Visitors

On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) adopted a new policy regarding how “unlawful presence” in the United States is determined for individuals in F or J status.  OIS is providing this guidance to help students and exchange visitors understand the impact of this change.

What is unlawful presence?

Under immigration law, "unlawful presence" refers to the status of a person who is physically present in the United States without the proper authorization.  An individual may trigger unlawful presence in several ways, such as staying in the U.S. beyond the authorized period of stay, violating a condition of legal F or J status, or even entering the country without first going through inspection as documented by U.S. Customs and Border Protection (CBP).

What has changed under the policy for unlawful presence?

Prior to August 9, 2018, unlawful presence did not start accumulating until a government entity made a formal decision regarding a person’s F-1 or J-1 status, such as USCIS finding an individual violated their status when processing a benefit request, or an immigration judge issuing a deportation order.

Under the new policy, effective August 9, 2018, USCIS states that unlawful presence starts to accrue the day after an individual actually violates their status, however that may happen, and even if they were unaware of the violation.  No formal decision by a government entity is required for unlawful presence to accumulate.

How does one violate the terms of F or J status?

The most common ways F students and J exchange visitors violate their status include but are not limited to:

  • Working without advance employment authorization from the OIS or USCIS
  • Falling below full-time enrollment without advance authorization from the OIS
  • Staying in the U.S. beyond the permitted grace period at the end of a period of study or research
  • Failing to update home address after moving
  • Changing or adding a site of activity (J-1 students/scholars) without advance authorization from the OIS
  • Remaining in the US after withdrawing from a program of study, taking a leave of absence without OIS approval, or otherwise no longer pursuing a course of study or other authorized activity
  • Failing to report OPT employer information
  • Receiving public benefits funded by government agencies

In many cases, the individual may not realize that they have violated their status and are already accruing days of unlawful presence.  Problems may go undetected for years until there is a need to review an individual’s entire immigration history, long after the violation occurred.  Such a detailed review most commonly happens when the individual is applying to USCIS for a benefit, such as a change of status to H-1B or permanent resident status, or sometimes even OPT.  Problems can also be detected when applying for a new visa or upon inspection at a port of entry by CBP.

Why is this important?

If a nonimmigrant accrues a certain number of days of unlawful presence, immigration officials can bar them from returning to the U.S. in any status for a period of several years.  An accumulation of 180 days of unlawful presence could lead to a bar to reentry to the U.S. of three years; an accumulation of one year or more of unlawful presence could result in a 10-year bar to reentry to the U.S.

An individual’s eligibility to change to a different nonimmigrant status, to request permanent resident status, or to come to the U.S. at a future date could be affected if there has been any violation of status, regardless of its length.  It remains unclear exactly how this policy will be implemented, or how stringently, but violations could have an immediate and detrimental impact to your studies or research program.

What can I do?

Know and follow the requirements to maintain your legal F or J status.  You can find information on maintaining status on the OIS website pages listed in the next section.

If you feel that you may have violated your status and are accruing unlawful presence, do not panic or rely on information from untrained individuals; talk first to your international advisor in OIS.  Depending on the circumstances, the OIS advisor may refer you to an experienced immigration lawyer for further counsel.

Where you can find more information:

NAFSA: Association of International Educators,_J,_and_M_Nonimmigrants/






F-1 students:

J-1 students:

J-1 scholars:

H-1B temporary workers: 

All university offices, including OIS, are closed December 24, December 25, December 31, January 1 and January 21.   All OIS offices will also close at 12:00 noon on Friday, January 11.

Other Location Specific Updates

OIS @ Medical Institutions

  • OIS @ Medical Institutions will maintain regular Monday-Thursday office hours during winter break.  
  • OIS @ Medical Institutions is closed to the public on Fridays but advisors are accessible via email and telephone.
  • There will be no walk-in advising December 26-28 and January 2-4.  

OIS @ Homewood

  • OIS @ Homewood will maintain regular Monday-Friday office hours during the winter break.  
    • Due to Homewood office maintenance, advisors may need to relocate temporarily.  Signs in Garland will direct clients to the temporary advising location.  
  • OIS @ Homewood will be closed December 26-28, but advisors will be accessible via telephone and email.  In addition, an advisor available in 143 Garland Hall each day between 12 noon and 1 pm for travel signatures.


SPECIAL NOTE:  We will have free Hot Chocolate at OIS Homewood Thursday and Friday, December 13 and 14, 1:00 to 4:00 p.m.   Come enjoy a cup while getting your travel signature.


  • OIS @ DC will close at 12:00 noon on Friday, December 28.  Otherwise, the DC office will maintain regular Monday-Friday office and walk in advising hours.

OIS@ Carey

  • The last day of OIS advising at Carey for the year will be Tuesday, December 18.   OIS advising at Carey will resume on Tuesday, January 15.  Carey students may still email and call OIS with questions, or visit the Homewood location during regular Homewood walk-in hours.

OIS @ Peabody

  • The last day of OIS advising at Peabody for the year will be Friday, December 14.   OIS advising at Peabody will resume on Friday, January 18.  Peabody students may still email and call OIS with questions, or visit the Homewood location during regular Homewood walk-in hours.

Below you will find information on the documentation needed to return to the US from international travel.   Please be sure that you have the necessary documents and signatures before you depart the US.  If you have any questions, talk to an OIS advisor during regular walk in hours.  

Basics for All Immigration Classifications.  All nonimmigrants must have the following items to reenter the US:

  • A passport that will be valid for at least 6 months after the date of reentry to the U.S. and
  • A valid, unexpired visa for the type of entry which is being requested (i.e., F-1 student, J-1 exchange visitor, H1-B temporary worker, etc.)   Note:  Citizens of Canada and Bermuda are exempt from visa requirements.  
    • Some individuals can travel to Mexico, Canada, or islands adjacent to the US except Cuba and return with an expired US visa.   You must check with OIS to see if you qualify for this exception.

F-1 and J-1 students and scholars must have:

  • An unexpired I-20 or DS-2019 with an OIS advisor travel signature that will be not more than 1 year old on the day you return to the U.S. 
  • NOTE:  The travel signature for F-1 students on OPT and J-1 Short-Term Scholars is valid for only 6 months.  
  • F-1 Students on OPT must normally show their valid EAD and proof of current employment.  You can click on the links that follow for information on travel for Post-Completion OPT and for STEM OPT.
    •  J-1 Alien Physicians sponsored by ECFMG must obtain a travel signature from ECFMG personnel, not OIS staff.   Plan ahead!  Information is available on the ECFMG travel page

Employees in H-1B or O-1 status must have several items to document immigration status.  Carefully review the information on the web for H-1B travel and O-1 travel and contact OIS with any questions.

Airlines and immigration officers may prohibit you from boarding an airplane or deny you entry to the US if you do not have complete reentry documentation.   A call to OIS can sometimes help (667-208-7001 during regular business hours; 443-240-1938 after hours only for emergencies).  However, there is still no guarantee a border official will re-admit you to the U.S. if you have incomplete documentation.