On May 3, 2019, a Federal District Court in North Carolina granted a preliminary injunction preventing U.S. Citizenship and Immigration Services (USCIS) from enforcing its August 9, 2018 policy memorandum, which expanded situations in which international students might commence accruing unlawful presence, thus subjecting them to three- and ten-year bars from reentry to the United States.
The May 3 lawsuit injunction, Guilford College et al. v. Mcaleenan et al., issued by the Honorable Loretta C. Biggs, is a nationwide injunction barring USCIS and the Department of Homeland Security (DHS) from enforcing the policy set forth in the August 2018 policy memorandum in all its applications nationwide, pending resolution of the lawsuit.
Before August 2018, unlawful presence would not begin to accrue until the day of or day after a formal finding or determination was made that the nonimmigrant was out of status. Under the new policy, nonimmigrant students and exchange visitors in F, M or J status would commence accruing unlawful presence from the moment a violation of status occurred.
While no formal notification would be furnished to the F, M or J visa holder, any past violation discovered would result in the recalculation of unlawful presence and place many at risk of being subject to a three- or ten-year bar many years after actual unknown violations might occur. Mistakes due to technical violations, human error, ambiguity or misunderstanding of the regulations would cause a nonimmigrant student or exchange visitor to accrue unlawful status without their knowledge and without the ability to remedy the violation.
The Guilford College case alleged that USCIS issued a policy memorandum in violation of the Administrative Procedure Act due to the government's failure to observe formal government notice and comment procedures and, further, that the policy memorandum conflicted with the statutory language of the Immigration and Nationality Act. The importance of the failure of the government to adhere to its own regulations and rules - and specifically the rules governing promulgation of changes - cannot be understated and could be used in other situations where USCIS issues policy memoranda without adhering to federal government guidelines.
While there is no guarantee or certainty regarding the ultimate decision of the judge in this case, the fact that it is a nationwide injunction, and may be successful based on the merits, is promising for international students who make all efforts to comply with federal government student regulations, but may inadvertently and unknowingly fall afoul of rules.
We will continue to monitor developments regarding this litigation over the next several months and caution international students to be vigilant to assure they maintain their nonimmigrant visa status in the United States.
