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Injunction Ordered in Accrual of Unlawful Presence and F, J, and M Nonimmigrants

3/2/2020
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On February 19, 2020, Judge Loretta Biggs, a federal district court judge, issued a permanent injunction against the United States Citizen and Immigration Services (USCIS), blocking their August 2018 policy memorandum Accrual of Unlawful Presence and F, J, and M Nonimmigrants along with the same-titled, corresponding memo from May 2018. The result of the ruling is that USCIS must revert to using the prior guidance based on its May 2009 memo. The injunction is a big win for foreign-born students and exchange visitors studying in the U.S. on F, J, and M visas.
 
What the Injunction Means for F, J, and M Nonimmigrants
 
The injunction is extremely important for F, J, and M nonimmigrants, as it prevents a vast number of them from suffering a three- or ten-year ban from the U.S. for unknowingly violating their duration of status. For the moment, F, J, and M nonimmigrants will only accrue unlawful presence as defined by the past guidance—after notification from USCIS or an immigration judge. However, it remains unclear what this injunction means for those already found unlawfully present under the August 2018 guidance. 
 
What the Lawsuit Was Over
 
The injunction comes as the result of a decision in the case Guilford College, et al v. Wolf, and is in response to the aforementioned August 2018 memorandum from USCIS changing the interpretation of “unlawful presence,” in which they would find F, J, and M nonimmigrants that had violated the terms of their status to be unlawfully present beginning the day after the status violation occurred.  
 
What the Injunction Means 
 
The upholding of the prior interpretation of “unlawful presence” by Judge Biggs means that nonimmigrants holding an I-94 with a “duration of status” (D/S) admission will not accrue unlawful presence until they have been notified by USCIS or an immigration judge that they’re in violation of their status. Once a D/S nonimmigrant is notified that they’ve violated their status, they have 180 days to leave the country—the penalty for failing to leave the country in that time is a three- or ten-year bar from the U.S.
 
According to Paul Hughes, the lead attorney for Guilford College, “The August 2018 Policy Memorandum would have turned an inadvertent error or omission into the basis for being expelled from the country for 10 years, disrupting essential academic, employment, and family relationships. Now, DHS is obligated to use the same policy that had prevailed for more than two decades, across administrations of both political parties. That rule is one of common sense: international students are first provided notice of an alleged status violation, and then the individual may rectify the issue or timely depart, thus avoiding a reentry bar.”
 
The Importance of the Guilford College Decision 
 
The U.S. is a leader in global education, attracting a large number of the world’s best and brightest minds. Historically, the United States has been the top destination for international students. In the 2018-2019 academic year, the U.S. hosted 1,095,299 international students—those students contributed $44.7 billion to the U.S. economy in 2018. 
 
Summed up by Guilford College attorney Paul Hughes, “Recent immigration policies by the Trump Administration have created a climate of fear among international students, to the detriment of not just our colleges and universities but the economy as a whole. This decision is one step in ensuring the United States remains an attractive destination for the world’s best and brightest international students to pursue their studies.”
 
GoffWilson Immigration Law
 
GoffWilson has decades of experience solely practicing immigration law. Over the years, we’ve represented numerous colleges, universities, research institutions, hospitals, and individuals. If you have a question about this recent ruling, unlawful presence, or any other immigration matter, contact us today—immigration isn’t just what we do, it’s our passion.
 
Filed under:Immigration Law