Yesterday, a federal district court judge issued a permanent injunction that prohibits U.S. Citizenship & Immigration Services (USCIS) from implementing a policy under which F, J and M nonimmigrant students and exchange visitors and their dependents would automatically begin to accrue unlawful presence as soon as they violate the terms of their nonimmigrant status.
The decision makes permanent a temporary, nationwide injunction imposed last year while the court heard the legal challenge brought by several universities and two individuals against the new USCIS policy. The lawsuit alleged that the policy is contrary to statutory unlawful presence provisions, is arbitrary and capricious, and violates the Administrative Procedure Act (APA) and the U.S. Constitution’s Due Process Clause. In her decision yesterday, Judge Loretta C. Biggs sided with the plaintiffs, invalidating the policy as a matter of law because it “impermissibly conflicts” with the statutory provisions pertaining to unlawful presence and because it should have been subject to the notice and comment rulemaking process as required under the APA.
The case is Guilford College et al v. Wolf et al. The government is expected to appeal the decision.
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 August 2018 memorandum, 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 policy, had it been permitted to take effect, would have been 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 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.
USCIS remains barred from implementing the unlawful presence policy articulated in its August 2018 memorandum. Until further notice, F, J, and M nonimmigrants can continue to rely on the prior agency policy of only accruing unlawful presence after a definitive and affirmative determination from USCIS or an immigration judge. However, the government is expected to appeal the decision to higher courts.
Separately, U.S. Immigration and Customs Enforcement is planning to propose a regulation that would change the period of authorized stay for certain F-1 and other nonimmigrants from the duration of status to a specified end date. The proposal is scheduled for publication this month, though agencies frequently bypass their projected regulation dates.