USCIS Is Changing How Unlawful Presence Is Calculated for Exchange Visitors


United States Citizenship and Immigration Services (USCIS) is changing the way the agency calculates the accrual of unlawful presence for J-1 exchange visitors and their family members in J-2 status.  ”Unlawful presence” is a legal term referring to the number of days an exchange visitor or J-2 family member is physically present in the United States after the end of an authorized period of stay. Accruing unlawful presence can negatively impact future mobility to the United States.

When a foreign national enters the United States in J-1 or J-2 status, U.S. Customs and Border Patrol (CBP) usually records the period of authorized stay as “D/S,” or “duration of status” in his or her passport and in the electronic Arrival and Departure Record (I-94). For years, USCIS would not begin counting unlawful presence for an exchange visitor admitted D/S until the day after an Immigration Judge (IJ) or a USCIS officer made a formal determination that the person had violated J-1 status. USCIS would count unlawful presence the same way for a J-2 family member (only after a formal determination), but the J-2 would be subject to the finding against the J-1 as well as any separate determination as to their own status violation.

Here are three ways exchange visitors can protect their future mobility after the new guidance is implemented on August 9, 2018.

Know Your Dates

D/S is a useful notation because it provides exchange visitors flexibility to complete programs that are often fluid. Some programs are shortened after arrival; others are extended. Exchange visitors and their J-2 dependents are often eligible to remain in the United States for up to 30 days after the program end date. Under the new policy, remaining in the United States beyond the grace period, and without a pre-approved change of status, will trigger the unlawful presence clock starting the day after the grace period ends. Therefore, it is critically important to know your program end date, and expected departure date. Fortunately, more than 96 percent of exchange visitors properly observe their program end date.

Follow Program Requirements and Avoid Unauthorized Activities

As of August 9, 2018, unlawful presence also will begin to accrue the day after an exchange visitor decides to leave the program early or participates in any unauthorized activity, if the “triggering” action occurred on or after August 9. This applies to the exchange visitor and J-2 family members. Exchange visitors are invited to the United States based on the understanding that they will participate in a specific set of activities, or fulfill a specific role (to learn, teach, intern, train, etc.), typically at a pre-determined place. If there is a change to program content or the exchange visitor no longer wishes to continue the program, the program sponsor should be contacted immediately.

For private sector exchange programs, unauthorized activities typically include engaging in unauthorized employment or working outside the scope of the sponsored program. Visitors in the intern, trainee, and student intern categories should frequently reference the approved Training/Internship Placement Plan (Form DS-7002) to guide program activities. For status violations on or after August 9, 2018, unauthorized presence begins to be counted the day after a violation occurs. But with the current change, if a status violation occurs, even if it is not identified until years later, USCIS will now count unlawful presence beginning the day after the date of the status violation. USCIS also would count unlawful presence for the J-2 from the day after the J-1’s status violation or from the day after the J-2’s separate status violation.

Keep In Touch With Your Sponsor

Exchange visitor program sponsors are well-equipped to help exchange visitors and host organizations understand the parameters of the program and how to maintain status. Visitors should submit all arrival documents to their sponsor upon entry to the United States and keep up to date with required check-ins and program evaluations. There is no limit to the number of times you may contact a sponsor to ensure you have an accurate understanding of your period of authorized stay in the United States and approved activities. Keeping in contact with your sponsor is a requirement of program participation and can help avoid issues with future mobility.