A recent federal district court decision from the Middle District of North Carolina has blocked the U.S. Department of Homeland Security from enforcing its 2018 Memorandum on F, J, and M Nonimmigrant Unlawful Presence nationwide. In Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., Federal District Judge, Loretta C. Biggs found that the policy violated the Administrative Procedures Act (APA) and the Immigration and Nationality Act (INA) and permanently enjoined (blocked) the Department of Homeland Security from enforcing this new policy.

As previously addressed in prior blog postings, F, J or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status would start to accrue unlawful presence under the terms of the memorandum and would no longer be deemed in Duration of Status.

The Court gives the example of engaging in an unauthorized activity to be one as seemingly minor as moving into a different dormitory without notifying the authorities of the new address, and through this example and statutory language and interpretation, shows that the agency actions openly conflict with statutory text.

Judge Biggs held that the new policy violated the plain language of the INA stating, “The memorandum improperly dissolves the distinction between the “expiration of the period of stay authorized” and the violation of lawful status”.

Thus, for now, international students can rely on their admission in Duration of Status to allow them to pursue their studies without concern over the government changing the definition of unlawful presence midcourse.

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