Happy Ending to the Unlawful Presence Saga

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On July 31, the government withdrew its appeal of the decision of a North Carolina federal court judge to permanently enjoin implementation of the USCIS reversal in policy that would have burdened tens of thousands of F, J, and M nonimmigrant students and scholars with 3 and 10-year bars to returning to the U.S. for inadvertent, minor, and technical violations of status that in many cases they had no way of knowing had been committed.

The saga started over 20 years ago when I was General Counsel of the American Immigration Lawyers Association. At that time, USCIS General Counsel and I and my committee were able to successfully negotiate an agreed interpretation of the new unlawful presence statute that remained the agency’s legal interpretation for decades. The congressional language referred to a “period of stay authorized by the Attorney General.” Since D/S – – the status granted to F, J, and M nonimmigrants – – did not have a specific expiration date, USCIS agreed with us that no unlawful presence accrues unless and until there is an actual finding of status violation; and the day of that finding is day 1 of unlawful presence. No negative consequence occurs until the student or scholar accrues 180 days of unlawful presence.

On August 19, 2018, USCIS attempted to change that legal interpretation that had prevailed for over 20 years by way of a policy memo and without notice and comment rulemaking as required by the Administrative Procedure Act. In a lawsuit in which 4 colleges – – Guilford College, Haverford College, The New School, and Foothill-De Anza Community College – – agreed to be plaintiffs, along with The American Federation of Teachers and other plaintiffs, and in which I was pleased to serve as co‑counsel, we successfully argued to the federal court that the policy memo should be overturned both because it violated the Administrative Procedure Act and because it was inconsistent with the language of the congressional statute. The federal court agreed with us on both grounds. The government filed an appeal. The withdrawal of that appeal constitutes the successful end of this long journey.

The impact of this successful litigation is significant in many ways. I will name several.

The impact on students and scholars is both obvious and enormous. Countless numbers of them would have been unable to return from trips overseas because of a finding that they may have had a violation of status, no matter how technical or unknowing, and without any appeal. Large numbers of students and scholars were unwilling to travel for fear of this consequence.

The impact on universities is also immense both because their students will not be barred from the U.S. and also because universities faced potential allegations of liability for violations that may be been attributed to actions or inactions of international offices. It is significant that 4 colleges were willing to step forward and be plaintiffs, and also that hundreds of universities stepped forward to fund the litigation and to sign on to amicus curiae briefs in support of the litigation.

In addition to the court’s legal analysis relating to the APA violation and the statutory intent of the unlawful presence provisions – – both of which will have wide-ranging implications – – there were at least 2 other findings that will greatly impact other litigation that is pending across the country challenging many different aspects of the Trump Administration’s attempts to reduce or eliminate legal immigration.

One issue is the concept of “ripeness.” The federal court held that the litigation was “ripe” even though no plaintiff had yet been barred from the U.S. based on this policy because many foreign nationals’ lives were affected by the inability to travel arising from the uncertainty created by the new interpretation.

The other litigation concept is “standing”. The federal court found that The American Federation of Teachers had standing even though no teacher had signed on as a plaintiff. The reason, which is referred to as representational standing, will positively impact the standing of other organizations bringing other challenges to the Trump Administration’s immigration restrictions.

Hopefully, the success of this litigation, together with the successful litigation challenging the government’s reversal of policy on the ability of F-1 students to maintain F-1 status in completely online programs during the pandemic, will encourage universities to step forward and support litigation challenging other immigration restrictions that unfairly affect the university communities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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