Unlawful Presence in a Post-Duration of Status Environment

Unlawful presence can make an individual inadmissible to the United States, meaning he or she cannot obtain a new visa or be admitted after departure for 3 years upon accruing more than 180 days but less than one year during a single stay, or for 10 years upon accruing one year or more in a single stay. Even one day of unlawful presence can void the visa used for the last entry and block automatic visa revalidation. These bars and collateral consequences significantly complicate or delay many pathways to lawful permanent residence or temporary visas, and may require a waiver of inadmissibility in order to return or immigrate.

For decades, the accrual of unlawful presence for F-1 students, J-1 exchange visitors, and their dependents has been linked to a formal finding of a status violation by a USCIS officer or an immigration judge. However, on September 15, 2026, this construct will change. Accordingly, it is helpful to understand how unlawful presence will accrue under the new framework and to walk through a few common scenarios.

Accrual of unlawful presence for those with a fixed Admit Until Date (AUD) begins if the individual remains in the U.S. after the date noted on the Form I-94. Beginning on September 15, 2026, the AUD of those in F and J status will be the program end date on their I-20 or DS-2019 (not to exceed four years) + a 60-day grace period for those in F status and a 30-day grace period for those in J status. Thereafter, international travel or the adjudication of extensions of stay (EOS) will result in I-94s that include a 30-day grace period. Remaining beyond the AUD without timely seeking to change or extend status will trigger the accrual of unlawful presence. Additionally, denials of extensions of stay will trigger unlawful presence if the denial comes after the AUD on the I-94.

Minors (i.e., those under the age of 18) do not accrue unlawful presence. Additionally, the timely filing of an EOS (i.e., USCIS’s receipt of the EOS before the AUD expires) will toll (i.e., pause) the accrual of unlawful presence until USCIS issues a decision on the EOS.

Putting this all together, a few common scenarios are in order:

1. An F-1 student’s current program end date is May 5, 2027. She is planning to pursue a higher-level degree and initiates the proper transfer procedures. On January 5, 2027, her EOS is received by USCIS. On July 13, 2027, her EOS is approved. There is no accrual of unlawful presence, since EOS was timely filed and approved.

2. The same facts from the first scenario apply, but the EOS is denied on July 13, 2027. Accrual of unlawful presence begins on July 13, 2027, since accrual was tolled by the timely filed EOS until USCIS adjudicated and denied it.

3. A scholar’s current program end date is May 5, 2027. He is planning to pursue a research program at a different institution and initiates the proper transfer procedures. On January 5, 2027, his EOS is received by USCIS. On April 3, 2027, his EOS is denied. Accrual of unlawful presence begins after the May 5, 2027 program end date and the 30-day grace period have passed.

This new normal means attention must be paid to the ever-changing AUD, based on EOS and entries from abroad, the latter of which could also result in shortened I-94s based on passport expiration dates. In this ever-changing environment, an ounce of prevention is worth a pound of cure. 

*Note that in the J-1 context, if the program end date on the DS-2019 does not reflect the date the J-1 is expected to complete the program in full, the sponsor must enter the expected completion date in the “Subject/Field Remarks” field of the DS-2019. Doing so allows DHS to consider admitting the J-1 or granting an EOS for a period longer than the program end date, up to a maximum of four years plus the 30-day grace period. In any event, the AUD put on the I-94 is crucial to the accrual of unlawful presence determination.