The End of “Duration of Status”: How the New Rule Could Eliminate Future Green Card Options for F, J, and M Visa Holders

Beginning September 15, 2026, a new federal rule will change how unlawful presence is calculated for many people who entered the United States with F, J, or M visas.

The most serious consequence is not simply that students and exchange visitors will have new expiration dates or additional applications to file. The rule may prevent people who are already out of status from using employment-based or family-based immigration options that remain available to them today.

Many former students and exchange visitors cannot obtain permanent residence inside the United States because they failed to maintain lawful status. However, they may still qualify for an immigrant visa through a U.S. consulate abroad. This is particularly important for people pursuing permanent residence through labor certification or through a family-based category other than an immediate-relative petition.

Under the current duration-of-status system, a person admitted for “D/S” may have violated immigration status without automatically accumulating unlawful presence. That distinction often permits the person to complete an employment-based or family-based immigrant petition, leave the United States for a consular interview, and return with an immigrant visa without triggering the three-year or ten-year unlawful-presence bar.

Beginning September 15, 2026, that may change.

Why September 15, 2026, Matters

Under the final rule, certain F, J, and M nonimmigrants who are already out of status may begin accumulating unlawful presence on September 15, 2026, even if they entered the United States years earlier with an I-94 marked “D/S.”

The rule does not retroactively count the time before September 15 as unlawful presence. Nevertheless, for an affected person, the unlawful-presence clock may begin running on that date.

Once the person accumulates more than 180 days of unlawful presence, departing the United States can trigger a three-year bar to returning. Accumulating one year or more can trigger a ten-year bar.

This means that the person may no longer be able to complete ordinary consular processing without first obtaining a waiver of inadmissibility.

How This Affects Employment-Based Immigration

A person who has fallen out of F-1 or J-1 status is frequently ineligible to adjust status through an employer inside the United States. But that does not necessarily prevent the person from pursuing permanent residence through:

• A labor certification filed by a U.S. employer;

• An approved employment-based immigrant petition; and

• Consular processing in the person’s home country.

Until now, a former student admitted for D/S might be able to leave for the immigrant-visa interview without triggering an unlawful-presence bar, even though the person had been out of status.

The new rule places that strategy at risk. Labor certification and employment-based immigrant petitions can take years. If the person begins accumulating unlawful presence on September 15, 2026, the person may pass the 180-day threshold long before a visa becomes available or the case is ready for consular processing.

A waiver is not automatically available simply because the person has an approved labor certification or employment-based petition. A waiver of the three-year or ten-year bar ordinarily requires extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse or parent. Hardship to the employer, the immigrant worker, or the worker’s children is not independently sufficient.

For some employment-based applicants, therefore, accumulating more than 180 days of unlawful presence will not merely complicate consular processing. It may make permanent residence unavailable for years.

How This Affects Family-Based Immigration

The same problem applies to many family-based cases.

Immediate relatives of U.S. citizens may sometimes qualify to adjust status despite an overstay, provided they were lawfully admitted or paroled and do not have another barrier to adjustment. But that protection does not generally extend to the family-preference categories.

Those categories include certain:

• Adult sons and daughters of U.S. citizens;

• Brothers and sisters of U.S. citizens;

• Spouses and unmarried children of lawful permanent residents; and

• Married sons and daughters of U.S. citizens.

A beneficiary who cannot adjust status may need to wait for a visa number and complete the case through a U.S. consulate. If that person accumulates more than 180 days of unlawful presence before departing, the departure itself may trigger a three-year bar. After one year, the departure may trigger a ten-year bar.

Again, the existence of an approved family petition does not guarantee eligibility for a waiver. The applicant must have the required qualifying relative and establish the legally required level of extreme hardship.

The Immediate Planning Deadline

For affected clients, this is not a deadline that can be addressed after 180 days have passed. Their options must be evaluated before unlawful presence begins accumulating on September 15, 2026.

That review should determine:

• Whether the person is presently maintaining F, J, or M status;

• Whether the person qualifies for a transition provision;

• Whether unlawful presence will begin on September 15;

• Whether reinstatement or another application can prevent or interrupt unlawful-presence accrual;

• Whether the person has a viable adjustment-of-status option;

• Whether an employment-based or family-based case can realistically be completed before departure becomes dangerous; and

• Whether the person would qualify for a waiver if a bar is triggered.

The critical threshold is more than 180 days, not merely the effective date itself. But waiting until the person is close to that threshold may leave no realistic time to complete a labor certification, wait for a family-preference priority date, or develop another lawful strategy.

The new rule therefore does much more than replace “D/S” with fixed expiration dates. For former students and exchange visitors who are already out of status, it may close immigration options that remain legally viable today. The final rule is scheduled to take effect September 15, 2026, subject to congressional review.