Federal Judge Stops USCIS from Applying its Revised Policy on Unlawful Presence for Foreign Students and J Nonimmigrants

On February 6, 2020, the United States District Court for the Middle District of North Carolina in Guilford College et. al. v. Wolf issued a nationwide permanent injunction regarding the U.S. Citizenship and Immigration Services' (USCIS) August 9, 2018 Policy Memorandum (PM) on the accrual of unlawful presence for nonimmigrant students – specifically F, J and M visa holders. This injunction comes shortly after a divided U.S. Supreme Court lifted a similar injunction on the new Public Charge Rule, as outlined in our previous posts.

In general, students are admitted to the United States for duration of status (D/S). This refers to the time during which a student is in a full course of study or engaging in authorized practical training following the completion of their studies. A foreign national student has historically been "unlawfully present" only if a government official made a formal determination of a status violation. Accruing unlawful presence may result in serious consequences when a foreign national departs the United States, including reentry bars for three or ten years, as explained in our blog post here.

The long-standing rule calculated unlawful presence prospectively for students by starting the "clock" on the day after an immigration judge or USCIS adjudicator formally identified a status violation. In contrast, the August 2018 PM instructed immigration officials to calculate unlawful presence retrospectively by starting the clock the day after the status violation occurs, such as the date an F, J or M nonimmigrant no longer pursues the course of study or authorized activity. To illustrate the rule's detrimental impact, a nonimmigrant student's failure to report an address change to USCIS (as required by the immigration regulations) would constitute "an unauthorized activity" in violation of their student status, thereby commencing the accrual of unlawful presence, irrespective of the end-date for the student's program.

In the Guilford case, the Court granted the motion for summary judgment on two counts and permanently enjoined the applicability of the August 2018 PM nationwide. First, the Court agreed that the August 2018 PM violated the Administrative Procedure Act (APA) because the rule serves as a legislative, rather than interpretive, rule, thus requiring a notice-and-comment period before taking effect. Second, the Court found that the August 2018 PM violated the express language and congressional intent of the Immigration and Nationality Act (INA) by "dissolving" the distinction between "unlawful presence" and "lawful status." In sum, the Court found that the rule was both procedurally and substantively defective, thereby ordering the August 2018 PM vacated and permanently enjoined nationwide.

Although the August 2018 PM has been preliminarily enjoined since May 2019, the nationwide injunction is a momentous victory for international students and universities alike. Nonimmigrant students may apply for and complete their academic programs without the added fear of unintentionally becoming subject to reentry bars. As of the date of this post, it is unclear whether the Department of Homeland Security will appeal the Court's decision. Nevertheless, foreign students are strongly encouraged, now more than ever, to consult an immigration attorney and critically assess their individual situation, including any accrual of unlawful presence under both policies.