D/S admissions (F/J/M): when does unlawful presence start?
F, J, and M admissions have no concrete I-94 date, so UP accrual follows the Neufeld framework: it generally starts only after a USCIS adjudication finding or an IJ order. We also track the ICEB-2025-0001 rulemaking to replace D/S with a fixed admission date.
Last reviewed: 2026-06-27
ICEB-2025-0001 proposes replacing D/S with a fixed admission date. This page gives framework logic only; see the 'ICEB-2025-0001 current status' card below — it tracks the live stage and effective date.
D/S admissions have no concrete I-94 end date, so the literal "overstay" concept does not apply. Under the current Neufeld framework, F/J/M UP generally begins only after a USCIS status-violation finding or an IJ order — violation date ≠ UP start date.
Why D/S can't use the date-certain formula
Date-certain admissions (B, H, L, O, TN, E...) have a printed end date, so "authorized stay expired" under §212(a)(9)(B) is easy to evaluate: day after the I-94 date = UP starts. D/S admissions (F, J, M) show D/S instead of a date, so the same test does not directly apply.
Legal terminology quick reference
Split by axis + events; click a term to jump to the matching definition section on this site.
| 中文 | English | Axis / Category | One-liner |
|---|---|---|---|
| 合法身份 | lawful status / legal status | status axis | Complying with classification conditions; a subset of authorized stay. |
| 失去身份 | out of status | status axis | Violation of classification conditions; ≠ automatic UP accrual. |
| 授权停留期 | period of stay authorized | presence axis | The §212(a)(9)(B) primary anchor; UP does not accrue during this period. |
| 非法滞留 (UP) | unlawful presence | presence axis | Accrues in real time in-country; settles into a bar upon departure. |
| 超期停留 | overstay | event | Past the I-94 date; triggers §222(g) visa voidance. |
| 离境 | departure | event | The event that settles accrued UP into a 3 / 10-year bar. |
| §222(g) 签证作废 | §222(g) visa voidance | event consequence | Triggered by overstay; decoupled from UP / bar mechanics. |
| 3 / 10 年禁令 | 3 / 10-year bar | settlement outcome | INA §212(a)(9)(B); single continuous UP; activates on departure. |
| 永久禁令 | permanent bar | settlement outcome | INA §212(a)(9)(C); aggregate UP > 1 year + later reentry/attempt without admission. |
The Neufeld framework: formal finding required
The Neufeld Memo (USCIS, 2009-05-06; folded into the Policy Manual) says D/S UP generally begins only after one of the following:
- USCIS makes a formal status-violation finding while adjudicating a benefit (e.g. denies an EOS/COS/AOS for a status violation), or
- An immigration judge orders the person excluded / deported / removed.
That is the root of "D/S ≠ automatic UP accrual": the violation date (e.g. the day an F-1 secretly drops out) is not the UP start date. This does not mean violations have no consequences — status is gone, future filings will surface it, reentry may be challenged — only that the §212(a)(9)(B) timer doesn't start immediately.
The 2018 memo and Guilford College v. Wolf
PM-602-0161 (2018) tried to switch F/J/M to "UP accrues automatically on the day of violation". Guilford College v. Wolf (M.D.N.C. 2020) vacated it with a nationwide injunction. USCIS reverted to the Neufeld framework. Articles dated 2018–2020 may not reflect current policy.
ICEB-2025-0001 (D/S → fixed date)
DHS is considering a rule in Docket ICEB-2025-0001 to abolish D/S and admit F/J holders with a fixed admission date. If finalized:
- D/S categories would collapse into the date-certain model: UP would auto-start after the date, in sync with overstay.
- Cap-gap mechanics, EOS timelines, and UP accrual logic would all need to be reworked.
- Procedural burden rises: F/J would need more frequent EOS filings.
See the status card at the top of this page for the current stage and effective date (data lives in SITE.icebRulemaking and is updated centrally).
Practical guardrails for D/S holders
- F-1: full-time enrollment, no unauthorized work, strict CPT/OPT compliance. Talk to your DSO and an attorney before dropping or pausing studies.
- J-1: follow your program sponsor's terms; mind the 2-year home residency requirement if applicable.
- Verify each I-94 shows D/S and your SEVIS ID matches after every entry.
- If planning COS/AOS, file timely so the pending period counts as authorized stay.
Common mistakes
- ❌ "An F-1 dropout starts UP the day they drop." Under Neufeld, a formal finding is generally required.
- ❌ "D/S has no date, so nothing matters." Status can still be lost; "no overstay date" doesn't mean no consequences.
- ❌ "The 2018 memo is still being applied." It was vacated/enjoined.
This site provides general information only.
Frequently asked (FAQ)
If an F-1 drops out, when does UP start?
Under the current Neufeld framework, the violation date is not the UP start date. UP generally begins only after USCIS makes a formal status-violation finding in adjudicating a benefit, or an IJ orders removal. Consult a qualified immigration attorney.
Is the 2018 D/S memo still in effect?
PM-602-0161 was vacated/enjoined in Guilford College v. Wolf (M.D.N.C. 2020). USCIS returned to the Neufeld framework. Re-check the latest text if rulemaking advances.
What is ICEB-2025-0001?
A DHS rulemaking that would replace D/S with a fixed admission date. If finalized, D/S categories would collapse into the date-certain model and UP would start automatically after that date. The status block at the top of this page tracks the current stage.
Once the ICEB-2025-0001 final rule publishes, when does it take effect?
Proposed to take effect 60 days after publication (subject to the official Federal Register text). The status card on this page updates finalRulePublishedDate / effectiveDate accordingly; until then, the Neufeld framework controls.
Does cap-gap relate to UP accrual?
Cap-gap automatically extends F-1 status (and in some cases work authorization) to October 1 under specific conditions. It's a status tool, separate from UP mechanics, but it indirectly reduces UP risk. Only applies to specific F-1 to H-1B cases.
I lost status before departing — does UP run from that moment?
Generally no under Neufeld. Even if status is gone, the UP clock has not started until USCIS makes a formal finding in an adjudication or an IJ rules. Departure itself does not retroactively activate UP.
Is the J-1 two-year home-residency requirement the same as UP?
No. INA §212(e) is a separate two-year home-residency requirement affecting later H, L, and LPR applications. It is a different dimension from UP / §212(a)(9)(B) bars and must be evaluated independently.
Is switching schools or J programs during D/S a violation?
Following the SEVIS transfer procedure through your DSO/RO is not a violation. Skipping that process can be treated as a status violation, but whether UP starts still depends on whether a formal finding is made.
Sources this page relies on
- Agency memorandum · 2009-05-06Neufeld 2009 Memo: Consolidation of guidance on unlawful presence
USCIS's first systematic treatment of when UP begins: date-certain vs D/S, and the tolling rules while a timely-filed EOS/COS is pending.
- Case law · 2020Guilford College v. Wolf: vacating the 2018 D/S UP memo
The district court vacated, nationwide, USCIS's 2018 policy that F/J/M would automatically accrue UP from the date a status violation occurred, finding it violated the APA.
- Rulemaking · 2025ICEB-2025-0001: NPRM to replace D/S with a fixed admission date
DHS proposes to end duration of status (D/S) for F, J, and I nonimmigrants and replace it with a fixed admission date, with EOS decided by USCIS. It remains at NPRM stage and is not a final rule.
- USCIS Policy Manual · currentUSCIS Policy Manual Vol 8, Part R: Unlawful presence determinations
The primary current USCIS reference for how UP is determined, consolidating the Neufeld framework and later case law.
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