USCIS Temporarily Blocked from Enforcing New Unlawful Presence Rules for Students and Exchange Visitors

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At a glance

• USCIS has been temporarily blocked from enforcing a new policy that penalizes students in F, J, and M status who violate the terms of their nonimmigrant status.
• The agency must revert to its prior guidance related to unlawful presence while a challenge to its new policy is litigated in federal court.
• The government is expected to appeal the decision.

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The situation

A federal district court judge has issued a nationwide preliminary injunction that prevents U.S. Citizenship & Immigration Services (USCIS) from implementing a policy under which F, J and M nonimmigrant students and exchange visitors and their dependents automatically begin to accrue unlawful presence if they violate the terms of their nonimmigrant status. 

The order means that the agency must revert to its prior rules relating to unlawful presence while a lawsuit challenging the legality of the new policy continues. The government is expected to appeal today’s decision. 

The case is Guilford College et al v. McAleenan et al, U.S. District Court for the Middle District of North Carolina.

A closer look

Today’s order comes as part of litigation brought forth by several universities and two individuals challenging an August 2018 USCIS memorandum that significantly altered agency policy related to the accrual of unlawful presence for F, J and M nonimmigrants and their dependents. The lawsuit, which is ongoing, alleges that the new policy is contrary to statutory unlawful presence provisions, and violates the Administrative Procedure Act (APA) and the Constitution’s Due Process clause. 

The policy in dispute reversed the agency’s longstanding method for calculating unlawful presence, whereby F, J, and M nonimmigrants holding an I-94 showing a “duration of status” (D/S) admission, would not accrue unlawful presence unless and until there was a specific finding of a status violation by USCIS or an immigration judge. In its the August 2018 memorandum, however, USCIS stated that starting August 9, 2018, it would find F, J, and M nonimmigrants and their dependents who have violated any terms of their status to be unlawfully present starting the day after the status violation occurred.

The impact of the revised policy is significant because a foreign national who has been unlawfully present for more than 180 days or one year or more is subject to a three-year or ten-year bar on reentering the United States and will not be eligible to apply for a visa, admission or adjustment of status to permanent resident unless they are granted a waiver of inadmissibility or other form of relief.  In addition, the new policy had a retroactive effect in which an F, J or M nonimmigrant could inadvertently violate his or her status and then trigger the accrual of unlawful presence without realizing it.

What this means for foreign nationals

In the wake of today’s order, USCIS cannot apply the unlawful presence policy articulated in its August 2018 memorandum until litigation on the issue is resolved.  It is unclear how the ruling might affect those who may have already been found to be unlawfully present under the new policy.  However, the temporary reversal is positive news for F, J, and M nonimmigrants who, for the time being, can rely on the prior agency policy of only accruing unlawful presence after a definitive and affirmative determination from USCIS or an immigration judge.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.