United States · Criminal Defense · Appeals
Can First Step Act time credits start before you reach federal prison? Yes, from September 30
From September 30, 2026, eligible federal prisoners can start earning time credits when their sentence begins, not when they arrive at their assigned prison. Credits still depend on the programs or work you complete, and the rule leaves a few questions for the courts.
At a glance
The practical result
- Agency
- Bureau of Prisons, interim final rule
- Change
- Credits start at sentencing
- Law
- 28 CFR 523.42, 523.44
- Immediate effect
- Applies from September 30, 2026
In this article
Short answer: If you or someone you love is sentenced to federal prison and waits in a county jail to be moved, that time can count toward First Step Act time credits from September 30, 2026. A new Bureau of Prisons rule takes effect that day and lets credits start when the federal sentence begins. Credits still come only from qualifying programs or work you complete, the rule does not promise an earlier release date, and it does not say whether the Bureau will recount waits that happened before it took effect.
What the new First Step Act rule changes
The Bureau of Prisons published the rule in the Federal Register on August 31, 2026. It is an interim final rule, which means it takes effect on September 30, 2026 without the usual proposal stage, while the Bureau still accepts public comments until that same day. It makes two changes to the regulation that governs First Step Act time credits.
The first change is the one most families will feel. Until the rule takes effect, the regulation says credits start only on "the date the inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will be served", according to the text in force before September 30. The rule deletes that phrase. From September 30, credits can start when the sentence legally begins, under the federal law on when a sentence starts. If you were already held before sentencing, that is usually the day you are sentenced. If you were free, it is the day you are taken into custody to wait for transport, or the day you surrender at the prison yourself.
The second change is narrower. It covers U.S. citizens and nationals who were sentenced in another country and moved under a treaty to serve that sentence in a U.S. prison. Their credits can now be applied once the U.S. Parole Commission sets the matching U.S. sentence. The Bureau says its practice already worked this way, so the rule writes that practice down.
If your family member's case is still open, or you are unsure how a conviction affects prison credits, a criminal defense lawyer who handles federal cases can look at the judgment and the Bureau's records with you.
Why the Bureau of Prisons changed course
Court rulings drove the change. The rule says it conforms to recent decisions holding that the old wording added a condition the First Step Act does not contain, and it cites the First Circuit's April 2026 decision in Miles v. Bowers first among them.
In Miles, the First Circuit ruled on April 27, 2026 that the regulation's view of when a sentence starts "plainly conflicts with the text of the FSA." Arthur Miles had spent fifteen months in a county jail after his first sentencing, working as an orderly, before he reached a federal prison. The court sent his case back so the lower court could decide whether his jail work qualifies for credits.
Five days earlier, the Fourth Circuit reached the same conclusion about timing in Benson v. Warden FCI Edgefield. It held that Rahshjeem Benson's sentence began when he was taken into U.S. Marshals Service custody, and that the law does not tie the start of a sentence to arrival at the assigned prison.
The Bureau's own numbers show what's at stake. It studied people whose sentences began from 2023 through 2025 and measured how long they waited between sentencing and arrival at their assigned prison.
- 66 days
- average wait from sentencing to arrival at the assigned prison, 2023 to 2025
- 23.8 days
- average extra credits the Bureau estimates that wait could earn each person
- $54.1M
- yearly savings the Bureau projects from earlier transfers and releases
How the rule got here
The First Step Act becomes law and creates earned time credits.
The Bureau of Prisons writes its credit rules into the regulations, starting credits on arrival at the assigned prison.
An executive order tells agencies to review their rules. The Bureau later points to it when it rewrites the credit rules.
The Fourth Circuit rules in Benson that a sentence begins in Marshals custody, not on arrival.
The First Circuit rules in Miles that the Bureau's start date conflicts with the Act.
The Bureau publishes the interim final rule in the Federal Register.
The rule takes effect, and the public comment period closes.
Before and after September 30, 2026
Many people sentenced to federal prison stay in the custody of the U.S. Marshals Service after sentencing, often in a local or county jail, until a bed and transport open up. The rule says that wait varies widely with distance and with bus and air routes. Under the old wording, none of it could earn credits. Under the new wording, it can, if you are taking part in qualifying programs or work.
An example, for illustration only: say you wait 60 days in a county jail after sentencing and work a qualifying job the whole time. At the basic rate of 10 days of credit for every 30 days of participation, that could add 20 days. Whether a particular jail job or class counts is a separate question the Bureau decides, and the Bureau says the change "does not mean that every eligible inmate will automatically begin earning Time Credits immediately after their sentence is imposed."
| Question | Before September 30 | From September 30 |
|---|---|---|
| When can credits start? | On arrival or surrender at the assigned federal prison. | When the sentence begins, including while waiting for transport. |
| Does time before sentencing count? | No. | Still no. The statute excludes detention before the sentence begins. |
| Do you still need qualifying programs or work? | Yes. | Yes. The rule does not change what earns credits. |
| What about a sentence from another country? | The regulation barred credits for sentences under laws other than the U.S. Code, with no exception for treaty transfers, though the Bureau says its practice already allowed them. | Credits can apply once the Parole Commission sets the matching U.S. sentence. |
| Is an earlier release guaranteed? | No. | No. Applying credits still depends on risk level and other conditions. |
What the rule does not change
The earning rates come from the statute and stay the same. Under 18 U.S.C. section 3632, you earn 10 days of credit for every 30 days of successful participation. That rises to 15 days if the Bureau rates you at minimum or low risk of reoffending and your risk hasn't gone up over two assessments in a row.
The same statute lists disqualifying offenses that make a person ineligible to earn credits at all. It also says anyone with a final order of removal, meaning a deportation order, can't have credits applied. If a deportation order is part of your family's situation, an immigration lawyer can explain how it interacts with the sentence.
How credits are used is also unchanged. According to the rule, for people at minimum or low risk whose sentence includes supervised release, the period of supervision after prison, up to 365 days of credits can start that supervision up to a year early. Credits beyond that, or credits held by someone without supervised release, can go toward earlier transfer to a residential reentry center, often called a halfway house, or to home confinement, again subject to risk level.
The rule text also says nothing about how the Bureau will recount credits for people already in its custody who waited in a jail before being assigned to a prison. Both Miles and Benson started as habeas petitions, the court filing a prisoner uses to challenge how a sentence is carried out, and both men lost in the district court before winning on appeal. If your family is thinking about challenging a credit decision, a lawyer who handles federal sentencing, often listed under criminal defense or appeals, can explain how that path works.
What you and your family should check next
Start with these five checks. They won't give you a release date, since the Bureau works that out, but they help you spot missing credit and ask the right questions. If you hire help, ask about federal sentencing and Bureau of Prisons experience, and use our questions for choosing a lawyer before you decide.
- Sentence start date: find the date your family member's federal sentence began in the Bureau's sentence computation, whether that was the sentencing date or the day they surrendered.
- Programs and work during the wait: list any classes, treatment or jobs completed in the jail before they were assigned to a prison, with dates and any certificates.
- Risk level and assessments: ask for the most recent risk and needs assessment results, because the earning rate depends on them.
- Eligibility: confirm the conviction is not on the statute's list of disqualifying offenses and that there is no final deportation (removal) order.
- Updated credit calculation after September 30: check whether the Bureau's count of time credits changes once the rule takes effect, and keep a copy.
Your questions about First Step Act time credits
When does the new First Step Act rule take effect?
On September 30, 2026. The Bureau of Prisons published it as an interim final rule on August 31, 2026, and public comments close the same day it takes effect.
When do First Step Act time credits start under the new rule?
Once the federal sentence begins. For someone already held before sentencing, that is usually the day they are sentenced. For someone who was free, it is the day they are taken into custody to wait for transport, or the day they surrender at the prison. Before the rule, credits started only on arrival at the assigned prison.
Who is eligible for First Step Act time credits?
People serving a federal sentence can earn credits for qualifying programs or work unless the conviction is on the statute's list of disqualifying offenses. People with a final order of removal, meaning a deportation order, can earn credits but can't have them applied toward earlier release.
Does time in jail before sentencing earn First Step Act credits?
No. The statute says credits cannot be earned for programs completed during official detention before the sentence begins, and the rule does not change that.
Does the rule guarantee an earlier release?
No. Credits still depend on completing qualifying programs or work, and applying them depends on the person's risk level and other conditions in the law.
How does the rule affect a sentence imposed in another country?
It covers U.S. citizens and nationals moved under a treaty to serve a foreign sentence in a U.S. prison. Their credits can be applied once the U.S. Parole Commission sets the matching U.S. sentence. The Bureau says it already followed this practice.
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