Court temporarily blocks change in ‘unlawful presence’ calculation for foreign students

A federal court has blocked U.S. Citizenship and Immigration Services (USCIS) from implementing an August 2018 policy memorandum that changed the way “unlawful presence” is calculated for foreign students and exchange visitors.

Key points:

• The Aug. 9, 2018 policy memo changed the calculation of “unlawful presence” for F, M and J visa holders so that they would begin to accrue unlawful presence under the three- or 10-year reentry bar provisions of INA 212(a)(9)(B) on the date that they violated their student status. Under previous longstanding rules, unlawful presence began only after an official finding by the government that the individual had violated his or her status.
• A federal court in North Carolina issued the injunction, ruling that the lawsuit is likely to succeed in at least two of its arguments: that the policy violated rulemaking procedures and that it conflicts with immigration statutes.
• The nationwide injunction prevents USCIS from implementing the new policy, forcing the agency to revert to the previous rules on the calculation of unlawful presence while the lawsuit progresses.

Background: The plaintiffs include colleges and universities and two individuals who entered as F student visa holders but are no longer students. Both were recruited by the U.S. Army and instructed not to leave the country while waiting for basic training. Under existing law, anyone who accrues 180 days of unlawful presence in the U.S. and later leaves is barred from re-entering for three years (10 years if they accrue one year of unlawful presence). The court ruled that they were likely to succeed on their claims that USCIS violated rulemaking procedures by not publishing a proposed rule in the Federal Register and opening up a public notice and comment period; and that the policy memo conflicts with immigration statutes that distinguish between “unlawful presence” and “unlawful status.”

BAL Analysis: The ruling temporarily blocks USCIS from implementing the new policy that accelerated the unlawful presence calculation and carried serious consequences for foreign students and exchange visitors. The ruling requires USCIS to revert to the previous longstanding rules for unlawful presence calculation for the duration of the lawsuit. The government is expected to appeal the decision.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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