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A federal judge has vacated and issued a permanent nationwide injunction of a Trump administration policy that changed the way “unlawful presence” is calculated for foreign students and exchange visitors.
Key points:
BAL Analysis: The policy memoranda would change the way unlawful presence is calculated, such that F, M and J visa holders would begin to accrue unlawful presence the day after they violated their student status, regardless of whether the government made a finding of a status violation. The calculation method is important because those who have been in “unlawful presence” and then depart the U.S. may be barred from returning to the U.S. for three or 10 years, depending on the length of unlawful presence. Under longstanding rules, unlawful presence begins only after an official finding by the government that the individual has violated his or her status. DHS is likely to appeal the ruling, and BAL will continue to monitor for developments on this issue.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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