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USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

According to the law, students and exchange visitors are non-immigrants who are present lawfully. However, once their status as a student ends, if they overstay their visa, their presence in the country becomes unlawful. A new policy memo from the USCIS allows for their accrual of time as an unlawful presence to be suspended while applications for lawful status are pending. In other words, it acts as a pause button so that a situation does not get worse while your application is being processed.


This is expected to both reduce the number of people who unlawfully overstay their visas, but also address the concerns of students whose applications are pending and filed their reinstatement applications within the mandated five-month window permitted once a student’s status has lapsed.


If the application is accepted, the applicant has no unlawful time accrued. But if an application is denied, the accrual of unlawful presence resumes starting from the day after the denial was issued. At that point, the petitioner must voluntarily leave the United States and avoid accruing additional unlawful presence, as this can result in later inadmissability at a future date.