Unlawful presence

The days of unlawful presence will begin to count from August 9, 2018 until the day you depart the U.S.

There are exceptions if one of the following happened before August 9, 2018:

• Your application for an immigration benefit has been denied by the U.S. Department of Homeland Security (DHS). Days of unlawful presence will begin to accrue the day after the date of denial.
• Your I-94 has a specific “admit until” date, instead of “D/S” (duration of status) and you remain in the U.S. after this date. Days of unlawful presence will begin to accrue the day after the specific “admit until” date on your I-94.
• You have been ordered by a U.S. immigration judge to be deported, removed, or excluded from the U.S. Days of unlawful presence will begin to accrue the day after the judge’s order.
• If you apply for reinstatement to U.S. Citizenship & Immigration Services (USCIS) within five (5) months of your status violation, the days of unlawful presence will be tolled (suspended) while the application is pending with USCIS.
  • If the reinstatement is approved, you will not accrue any more days of unlawful presence and you will be forgiven for the violation.
  • If reinstatement is denied, you will begin to accrue more days of unlawful presence beginning on the date of denial. You will need to calculate the days between the status violation and date USCIS received your application (updated your application status to “pending”), and add to the days after the USCIS denial decision until the day you depart the U.S.
  • If the reinstatement is not filed with USCIS in a timely manner (within 5 months of the status violation), or the application is deemed frivolous by USCIS, or USCIS determines you have engaged in unauthorized employment, the days of unlawful presence will continue to accrue and will not be suspended while the application is pending.

The days of unlawful presence will begin to count from the date that the earliest status violation occurred until the day you depart the U.S.

• The day after you no longer pursue your course of study or authorized activity, according to your I-20 or DS-2019.
• The day after you engage in unauthorized activity, such as unauthorized employment.
• The day after you complete your course of study, including any authorized practical training or earned 60 day grace period.
• The day after your I-94 expires, if the I-94 has a specific “admit until” date, instead of “D/S” (duration of status).
• The day after you have been ordered by a U.S. immigration judge to be deported, removed, or excluded from the U.S.
• If you apply for reinstatement to U.S. Citizenship & Immigration Services (USCIS) within five (5) months of your status violation, the days of unlawful presence will be tolled (suspended) while the application is pending with USCIS.
  • If the reinstatement is approved, you will not accrue any more days of unlawful presence and you will be forgiven for the violation.
  • If reinstatement is denied, you will begin to accrue more days of unlawful presence beginning again on the date of denial. You will need to calculate the days between the status violation and date USCIS received your application (updated your application status to “pending”), and add to the days after the USCIS denial decision until the day you depart the U.S.
  • If the reinstatement is not filed with USCIS in a timely manner (within 5 months of the status violation), or the application is deemed frivolous by USCIS, or USCIS determines you have engaged in unauthorized employment, the days of unlawful presence will continue to accrue and will not be suspended while the application is pending.

If you begin to accrue days of unlawful presence, you may face serious consequences. It is important to consult with an ISS advisor as soon as you become aware of a status violation. In some cases, you may need to consult with an experienced immigration attorney.

• If you accumulate less than 180 days, you may not face a bar from entering the U.S. However, you may have problems applying for another U.S. visa in the future.
• If you accumulate 180 to 364 days of unlawful presence in the U.S., you may face a bar from entering the U.S. in any visa status for a period of three (3) years.
• If you accumulate one year or more of unlawful presence in the U.S., you may face a bar from entering the U.S. in any visa status for a period of ten (10) years.

• In the thirty (30) days before the I-20 start date.
• While pursuing a full course of study at the school that issued the I-20, including any periods of authorized reduced course load by ISS and/or authorized practical training (CPT or OPT).
  • If you are on CPT, you must meet the enrollment requirements while on CPT, if applicable.
  • If you are on post-completion OPT, this includes any days of unemployment allowed (90 days for post-completion; 150 days for STEM extension).
• During a change of education level, as long as the change is done during the 60 day grace period and the new program of study begins within five (5) months of your date of last attendance or EAD card end date.
• During a SEVIS transfer, as long as the transfer is done during the 60 day grace period and the new program of study begins within five (5) months of your date of last attendance or EAD card end date.
• While you have a pending USCIS application for post-completion OPT.
• While you are on a period of authorized post-completion OPT, OPT STEM extension, or OPT H-1b cap gap period.
• While you have a pending reinstatement application with USCIS, as long as the application was filed with USCIS within five (5) months of the status violation.
• The time you are out of status and applied for reinstatement with USCIS, and USCIS approves the reinstatement application.
• During any earned grace period:
  • 60 days after the date of program completion
  • 60 days after the end date of any authorized OPT/STEM Extension
  • 15 days after ISS terminates your SEVIS record for a leave of absence (or authorized early withdrawal)

Note: If UW-Madison is not the DS-2019 program sponsor, you should consult with the appropriate program sponsor for guidance on unlawful presence.

• In the thirty (30) days before the DS-2019 start date.
• While pursuing a full course of study at the school that issued the DS-2019 or is the primary site of activity on the DS-2019, including any periods of authorized reduced course load by ISS and/or authorized academic training.
• The time the J-1 nonimmigrant was out of status if the U.S. Department of Status approves reinstatement.
• During any earned day grace period:
  • 30 days after the date of program completion
  • 30 days after the end date of any authorized post-completion Academic Training

F-2 and J-2 dependents accompanying an F-1 or J-1 student in the U.S. can also accrue days of unlawful presence. An F-2/J-2 dependent begins to accrue days of unlawful presence at the same time as the F-1/J-1. In addition, an F-2/J-2 dependent may begin to accrue days of unlawful status based on a violation of their F-2 or J-2 status, such as unauthorized employment.

Dependents under the age of 18 years do not accrue days of unlawful presence.

ISS advisors will provide you with information and you are expected to select a course of action. In some cases, it may be necessary for you to seek legal counsel from an experienced immigration attorney. It is your responsibility to understand and follow the requirements for your non-immigrant visa.