Immigration Law
Short Answer: Under DHS's new fixed-period system, scheduled to take effect September 15, 2026, F-1 students and J-1 exchange visitors will generally begin accruing unlawful presence after their authorized period expires if they remain in the United States without another period of authorized stay. The harder question involves people already admitted for Duration of Status (D/S). DHS created transition rules for existing D/S holders, but the final rule leaves important questions about when unlawful presence begins in some transition cases unresolved. The rule is also subject to a pending federal lawsuit and to congressional review.
For decades, F-1 students and J-1 exchange visitors had an unusual protection when it came to unlawful presence: their Form I-94 generally said D/S, or Duration of Status, instead of containing a specific expiration date. That distinction could make an enormous difference. A student could violate F-1 status without necessarily beginning to accrue unlawful presence on the same day.
DHS has now fundamentally changed that system. On July 17, 2026, the Department of Homeland Security published a final rule at 91 Fed. Reg. 44976 replacing D/S with fixed periods of admission for F, J, and I nonimmigrants. The rule is currently scheduled to take effect on September 15, 2026.
For F-1 and J-1 visa holders, that change makes one date much more important than it used to be: the Admit Until Date on Form I-94.
But the new rule does not create one simple unlawful presence rule that applies to everyone. There is an important dividing line between people admitted under the new fixed-date system and people already in the United States under D/S when the rule takes effect. And for that second group, some very important questions still do not have clear answers.
The rule is final and published, but the September 15 effective date is not guaranteed. On August 18, 2026, a coalition including NAFSA, the Presidents' Alliance on Higher Education and Immigration, the American Federation of Teachers, the UAW, and the NewsGuild-CWA filed suit in the U.S. District Court for the District of Massachusetts and moved for a preliminary injunction. The case is Presidents' Alliance on Higher Education and Immigration v. U.S. Department of Homeland Security, No. 1:26-cv-13799 (D. Mass.).
The plaintiffs argue that DHS violated the Administrative Procedure Act by providing an inadequate comment period, failing to assess the rule's costs and benefits, failing to respond meaningfully to public comments, and exceeding its statutory authority. Twenty state attorneys general, including Maryland's, filed an amicus brief supporting the motion. DHS filed its response on September 2 and defends the rule as within its authority.
Judge F. Dennis Saylor IV heard argument on September 3, 2026. As of the date of this article, no ruling has issued.
There is a second variable. DHS classified this as a major rule subject to the Congressional Review Act, and has said it will publish a further Federal Register document if the congressional review process changes the effective date or terminates the rule.
Filing a lawsuit does not suspend a regulation. Unless and until a court orders otherwise, September 15, 2026 remains the operative date and everything below applies on that timeline. But anyone making a decision based on this article should confirm the current status of the case first.
Under the longstanding D/S framework, an F-1 student or J-1 exchange visitor admitted for Duration of Status generally did not begin accruing unlawful presence simply because the person violated status or remained after the program ended. Under existing USCIS policy, unlawful presence for a person admitted for D/S generally begins after USCIS formally determines that a status violation occurred while adjudicating an immigration benefit request, or after an immigration judge makes the relevant determination.
That distinction between being out of status and accruing unlawful presence has always been critical. I explain the distinction in more detail in my article on visa overstays, unlawful presence, and being out of status.
The new DHS rule changes the framework going forward. Under the final rule, F-1 and J-1 nonimmigrants will generally be admitted for a fixed period rather than D/S, and DHS will tie the authorized admission period to the person's program or authorized activity, subject to the limits established by the new regulations.
The outer limit is four years. That period is measured from the program start date shown on the Form I-20 or DS-2019, not from the date the person physically entered the United States, and it caps a single period of admission rather than the total time a person may spend in F-1 or J-1 status.
That means there will generally be an actual expiration date on Form I-94. And once there is a fixed expiration date, determining when unlawful presence begins becomes much more like the calculation used for other nonimmigrant categories.
For an F-1 student or J-1 exchange visitor admitted under the new fixed-period system, unlawful presence will generally begin after the person's authorized period of admission expires if the person remains in the United States without another period of authorized stay. The important document is Form I-94. Under the new regulations, F and J nonimmigrants will generally receive an Admit Until Date, sometimes abbreviated AUD, instead of D/S.
The rule also shortens the post-completion departure period for newly admitted F-1 students from 60 days to 30 days, matching the 30 days J-1 exchange visitors already receive. That compresses the window for deciding whether to depart, transfer, change status, change educational level, or begin practical training.
For example, suppose an F-1 student enters the United States after the rule takes effect and receives an I-94 with an Admit Until Date of June 15, 2028. If the student remains in the United States after that date without timely filing something that provides a period of authorized stay, unlawful presence would generally begin on June 16.
That is a major practical change. Under the old D/S system, looking at the program end date alone did not necessarily tell you when unlawful presence began. Under the new system, the fixed I-94 date can become the starting point for that calculation.
There is another important change that is easy to overlook. A future I-94 date should not be treated as permission to ignore the requirements of F-1 or J-1 status until that date arrives. A student still has to maintain F-1 status, and a J-1 exchange visitor still has to comply with the requirements of J-1 status.
The fixed date establishes the outer limit of the authorized admission. It does not eliminate the underlying status requirements.
The new F-1 and J-1 system makes extensions of stay far more important because a student or exchange visitor who needs additional time may now have to ask USCIS for it. DHS specifically addressed what happens when an extension of stay is timely filed.
If an F, J, or I nonimmigrant timely files a qualifying extension of stay before the authorized period expires, the person is considered to be in a period of authorized stay while USCIS adjudicates the extension. Unlawful presence does not accrue merely because the I-94 expires while that timely filed request remains pending. That protection matters.
Suppose an F-1 student's I-94 expires on June 15, 2029. The student properly files a required extension of stay before that date, but USCIS does not decide the application until November. The student does not simply begin accumulating unlawful presence on June 16 because the I-94 date passed while the timely filed extension remained pending.
But a denial can change the situation quickly. Under the final rule, if USCIS denies an extension after the person's authorized admission has already expired, the F-1 or J-1 nonimmigrant generally must depart immediately. DHS explains in the final rule's preamble that such individuals generally begin accruing unlawful presence after the denial.
That makes timing much more consequential than it was under D/S. An F-1 or J-1 nonimmigrant should not wait until the end of the authorized period to determine whether an extension is necessary.
A fixed I-94 expiration date does not necessarily protect an F-1 or J-1 nonimmigrant from unlawful presence consequences until that date regardless of what happens in the meantime. Consider an F-1 student admitted through June 2029 who stops attending school in January 2028. The student may have violated F-1 status even though the I-94 shows a date more than a year in the future.
The final rule's preamble indicates that DHS continues to treat status violations as significant independently of the expiration of the fixed admission period. It also discusses the existing framework under which a status violation can be formally determined by an immigration officer during the adjudication of an immigration benefit or by an immigration judge.
For example, assume an F-1 student stops attending school on January 1, 2028 and later files Form I-539 to change to H-4 status. USCIS subsequently denies the application after determining that the student had already violated F-1 status. In that situation, unlawful presence may begin following USCIS's determination even though the original fixed admission period has not yet reached its stated expiration date.
This is why I would not treat the new I-94 date as a guaranteed safe date in every case. Maintaining status and avoiding unlawful presence remain related but distinct questions.
The most difficult unlawful presence questions involve F-1 and J-1 nonimmigrants who are already in the United States under D/S when the new rule takes effect. DHS did not require every existing F-1 and J-1 holder to immediately obtain a new I-94 on September 15. Instead, the final rule establishes transition provisions in 8 CFR 214.1(m) [UNVERIFIED — please confirm this cite] for people who were admitted for D/S and are properly maintaining their F or J status when the rule takes effect.
For qualifying F and J nonimmigrants, the transition generally continues until the later of two dates: the program end date on the Form I-20 or DS-2019 that is valid on the effective date, or the expiration date of any OPT or STEM OPT Employment Authorization Document. That second prong matters a great deal for students on practical training and is easy to overlook. Either way, the transition is capped at four years from the effective date.
For F-1 students, the transition provisions also preserve an additional 60-day departure period, and J-1 exchange visitors generally receive an additional 30 days. This means an F-1 student properly maintaining status on September 15, 2026 does not automatically begin accruing unlawful presence simply because DHS has eliminated D/S for future admissions.
Two groups fall outside the transition entirely. The provisions do not reach F or J nonimmigrants who are outside the United States when the rule takes effect, and they do not reach anyone present in the United States in violation of status on that date.
But that only answers the easy case. The much harder question is what happens when something changes during the transition.
An F-1 or J-1 nonimmigrant properly maintaining status on September 15, 2026 may be able to remain under the transition provisions through the applicable program end date and departure period. But exactly how unlawful presence interacts with those transition provisions is not clear in every scenario.
The final rule's preamble states that people who remain beyond a fixed period generally will begin accruing unlawful presence. At the same time, a person admitted before September 15 may still physically possess an I-94 marked D/S rather than an I-94 containing a fixed Admit Until Date.
That creates an important question. Does unlawful presence automatically begin when the transition period ends, or does some part of the old D/S framework continue to matter because the person's original admission was for D/S?
The final rule contains language pointing toward unlawful presence beginning after the applicable transition period expires. But the rule does not clearly resolve every possible interaction between the transition provisions and the longstanding D/S unlawful presence framework. Until DHS provides clearer implementation guidance, I would be very cautious about relying on the most favorable possible interpretation.
This may be one of the most dangerous transition scenarios. Suppose an F-1 student's program ended before September 15, 2026. The student remains in the United States and still has an I-94 marked D/S.
Under the old framework, the mere passage of the program end date did not necessarily start the unlawful presence clock. The final rule's preamble, however, states that the new unlawful presence calculation will not be applied retroactively. It also states that for people with completed programs and expired Forms I-20, unlawful presence will begin on the effective date unless they took certain action before then, such as applying for reinstatement, a change of status, or qualifying OPT or STEM OPT employment authorization.
That language is extremely important. It means September 15, 2026 could become Day 1 of unlawful presence for some people who previously were protected by the D/S framework.
For a J-1 exchange visitor whose program ended before the effective date, DHS's approach preserves only the unexpired portion of the existing 30-day departure period. If that period has already run, there is no transition protection.
But the final rule also says that only people maintaining status on the effective date are subject to the transition provisions. The interaction between these statements creates difficult questions for people who were admitted D/S but were already out of status before September 15. This is not an area where I would recommend assuming the old rule continues indefinitely.
Another difficult scenario involves someone who qualifies for the transition rules on September 15 but violates status afterward. Imagine an F-1 student who is properly maintaining status when the new rule takes effect. The student's I-94 still says D/S, and the Form I-20 lists a future program end date.
Then, in October 2026, the student stops attending school and the SEVIS record is terminated. The student is clearly no longer maintaining F-1 status. But precisely when does unlawful presence begin?
Does it begin when the student stops maintaining F-1 status or when SEVIS is terminated? Does the old D/S rule requiring a formal determination continue to have some application? Or does the transition framework produce a different result? The final rule does not provide a sufficiently clear answer for every version of this scenario.
That uncertainty is significant because out of status and unlawful presence have historically been different concepts for F-1 and J-1 nonimmigrants. The final rule moves those concepts closer together by replacing D/S with fixed periods of admission, but I would not assume that every transition case has become a simple calendar calculation. It has not.
When several reasonable unlawful presence calculations exist, I would not advise someone to gamble on the calculation that produces the latest possible starting date. I would use the earliest reasonable date on which unlawful presence could begin and plan around that date unless and until DHS issues guidance establishing otherwise. That approach is intentionally conservative.
There is a practical reason for it. If you assume unlawful presence began too early and later guidance establishes a later date, you may have acted more cautiously than necessary. If you assume it began later and DHS ultimately takes the earlier position, however, you may discover that someone crossed the 180-day or one-year threshold without realizing it.
The consequences of being wrong are not equal.
The unlawful presence calculation matters because of INA §212(a)(9)(B). A person who accrues more than 180 days but less than one year of unlawful presence and then voluntarily departs before the commencement of removal proceedings can generally become inadmissible for three years under INA §212(a)(9)(B)(i)(I). A person who accrues one year or more of unlawful presence and then departs or is removed can generally become inadmissible for ten years under INA §212(a)(9)(B)(i)(II).
There are statutory exceptions and other rules that can affect the calculation, so simply counting days on a calendar is not enough in every case. I walk through how these bars actually operate, and what remedies survive a departure, in my article on whether you can return to the U.S. after an overstay.
The important point for F-1 and J-1 holders is this. The new Duration of Status rule can change when Day 1 occurs, and if Day 1 changes, the dates on which someone reaches 180 days and one year change with it.
The three-year and ten-year bars are generally triggered by departure, not simply by remaining in the United States while unlawful presence accumulates. That makes determining the unlawful presence starting date particularly important before international travel or consular processing.
Existing F-1 and J-1 holders should also understand that the transition rules do not necessarily follow them through a departure and return. Under the new transition provisions, an F or J nonimmigrant who was admitted for D/S before the effective date may initially remain under the transition framework if the requirements are met. But international travel can change that.
If the person leaves the United States after the rule takes effect and is subsequently readmitted, the person will generally receive a new I-94 containing a fixed admission date rather than D/S, and, under the new framework, the shorter 30-day departure period rather than the 60 days preserved under the transition.
That means two F-1 students attending the same university could eventually be operating under different admission records. One may remain inside the United States under the D/S transition provisions. The other may travel abroad and return with a fixed Admit Until Date, and their unlawful presence analyses could therefore be different even if their academic programs otherwise look identical.
That is another reason not to analyze these cases solely by looking at the program end date on Form I-20 or DS-2019.
The first question is no longer simply, "When does my program end?" For an F-1 student or J-1 exchange visitor evaluating unlawful presence around the September 15 transition, I would want to know:
Those facts can determine whether the person remains within the D/S transition provisions, has moved into the new fixed-period system, or may already have an unlawful presence issue requiring closer analysis. A Form I-94 showing D/S is no longer enough by itself to answer the question.
Students thinking past graduation should also revisit their longer-term timeline, because fixed admission periods change when OPT, H-1B sponsorship, and green card filings need to line up. I cover that sequencing in my guide to moving from F-1 status to a green card.
It is important to separate what DHS has actually established from what remains uncertain. What is established: DHS published a final rule eliminating D/S admissions for F, J, and I nonimmigrants and replacing them with fixed periods of admission, it is currently scheduled to take effect September 15, 2026, and DHS created transition provisions for qualifying people already in the United States under D/S.
For future fixed-date admissions, the general unlawful presence framework is considerably clearer: once the authorized admission expires, remaining in the United States without another authorized period can begin the unlawful presence clock.
What is not yet completely clear is exactly how unlawful presence should be calculated in several situations involving people transitioning from the old D/S system. The final rule's preamble addresses unlawful presence repeatedly and provides important guidance about DHS's intended approach, and DHS has published a frequently asked questions page on the rule. But neither clearly resolves every factual scenario involving existing D/S holders.
That distinction matters. Until DHS provides clearer implementation guidance, someone with a possible status violation should be especially cautious about assuming that the old D/S unlawful presence protection continues to apply simply because an I-94 still says D/S. And someone approaching 180 days under even a reasonably possible calculation should understand the issue before departing the United States.
If you are in F-1 or J-1 status and are concerned that you may have violated status, completed your program, remained beyond an authorized period, or may be affected by the September 15 transition, the date unlawful presence begins can depend on several different rules. Contact me at SG Legal Group if you would like to discuss how the new rule applies to your circumstances.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration laws and policies are subject to change, and individual circumstances vary. For advice specific to your situation, please consult with a qualified immigration attorney.
Oleg Gherasimov, Esq.
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