Judge vacates DHS policy on ‘unlawful presence’ of foreign students

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:

• DHS is blocked from implementing its May 10, 2018 and August 9, 2018 policy memoranda that would change the calculation of “unlawful presence” for F, J and M visa holders.
• The policy memos have not been in effect since the court’s earlier ruling temporarily blocking their implementation on May 3, 2019.
• Yesterday’s ruling permanently blocks the policies from taking effect. The court addressed the merits of the case and concluded that the policy memos violated the rulemaking procedures of the Administrative Procedure Act and conflicted with the Immigration and Nationality Act.
• DHS will likely appeal the ruling.

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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