Update. On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states:

"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."

On July 31, 2020 DHS filed a motion to dismiss its own appeal of the lower court's decision. For now, USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.

Advisers should still counsel students with questions about the injunction and applicability to their individual situation, to consult an experienced immigration lawyer.

Litigation Notes

On October 23, 2018, a group of colleges and universities filed suit in U.S. District Court to challenge USCIS's F, M, and J unlawful presence policy. The plaintiffs asked the court to declare unlawful and vacate the August 2018 policy memo, and to enjoin the enforcement or application of the memo.

On February 6, 2020, the Court granted the plaintiff's motion for partial summary judgment, denied the Government's motion for summary judgment, and declared the August 2019 policy invalid, set aside, and permanently enjoined nationwide in all applications. On April 3, 2020 DHS appealed to the Fourth Circuit Court of Appeals, but on July 31, 2020 the agency filed a motion to dismiss its own appeal.

Future Rulemaking

A DHS proposed rule titled "Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions" appears in the Spring 2020 Regulatory Agenda with a target date of 03/00/2021. DHS/USCIS, RIN 1615-AC46. DHS/USCIS had published this item for the first time in the Fall 2019 regulatory agenda. It appears related to the agency's attempt to revise its unlawful presence policy via policy memo, which was blocked in Federal court. See NAFSA's unlawful presence litigation page for background. As one element of the litigation involves the Administrative Procedure Act (APA), this proposed rule may be a tactic to resolve any APA issues by going through the public notice and comment rulemaking procedure.

Title: Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions. Abstract: "The three- and ten-year bars to admissibility of section 212(a)(9)(B)(i) of the Immigration and Nationality Act (the Act) and the permanent bar to admissibility of section 212(a)(9)(C)(i)(I) of the Act were added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Div. C of Pub. L. 104-208 (September 30, 1996) (IIRIRA)). The amendments enacting sections 212(a)(9)(B) and (C) became effective on April 1, 1997. To date, DHS has not implemented regulations describing how unlawful presence accrues for the purposes of 212(a)(9)(B)(i) and (C)(i)(I). DHS intends to propose regulations to this effect, which may include or expand upon certain current agency policies, including whether certain failures to abide by the conditions of admission as a nonimmigrant can result in accrual of unlawful presence. Further, DHS intends to address how aliens subject to inadmissibility under 212(a)(9)(B)(i) and (C)(i)(I) may be admitted to the United States after remaining outside the United States for the required period of time."

Background

USCIS published a draft policy memorandum on May 11, 2018, and accepted public comments until June 11, 2018. NAFSA submitted a comment letter on May 24, 2018. On August 9, 2018, the USCIS Feedback Updates page indicated that USCIS received 297 comments during the comment period, and that it was "reviewing your comments and will consider them before issuing final guidance." USCIS then published a final policy memorandum late that same evening.

The original USCIS new release stated that, "[t]his policy aligns with President Trump's Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018." The news release also recapped how INA 212(a)(9)(B) and (C) would have functioned under the memo:

"Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief."

The statutory provisions that created the penalties for "unlawful presence" were added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the August 2018 policy, however, USCIS changed the way it "counts" days of unlawful presence for F-1, F-2, M-1, M-2, J-1, and J-2 nonimmigrants.

  • Under prior policy, which had been in place for 20 years, the unlawful presence count began only after a formal finding of a status violation by a DHS officer in the course of a benefits application, or by an immigration judge in the course of removal proceedings.
  • Under the policy described in USCIS's August 2018 memo that is now enjoined, unlawful presence would have begun to accrue:
    • the day after a status violation, if the violation occurred on or after August 9, 2018
    • on August 9, 2018, if the violation occurred prior to August 9, 2018
  • Under both the current and enjoined policies:
    • Remaining in the United States beyond the expiration of a date-specific Form I-94 also starts the unlawful presence clock; and
    • There are a number of important exceptions, such as unlawful presence not being counted while USCIS adjudicates an F-1 student's timely-filed application for reinstatement
  • Because of the May 3, 2019 preliminary injunction followed by the February 6, 2020 permanent injunction, USCIS will continue to apply its prior policy, articulated in the unlawful presence memo issued on May 6, 2009.
  • Remember that being "out of status" and being "unlawfully present" are two different concepts and conditions! A violation of nonimmigrant status still puts an individual "out of status" and subject to removal from the United States, even though "unlawful presence" may not have started being counted. Advisers should still counsel students to consult an experienced immigration lawyer if they have questions about or need strategies to deal with unlawful presence and status violations in their individual situation.