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 May 3, 2019, the same court had issued a preliminary injunction that temporarily halted enforcement of the 2018 policy while the underlying case was resolved. In the interim, USCIS returned to applying the 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. The February 6, 2020 decision and order means that the 2009 policy will continue in place.

DHS might be expected to appeal the decision. 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 January 28, 2019, the District Court issued a Temporary Restraining Order (TRO) that blocked the Government from applying the unlawful presence memo on two named plaintiffs in the case, both of whom are MAVNI candidates. The TRO applied only to these two named plaintiffs, and had no effect on any other party. A hearing on the motions took place on April 4, 2019, and the Court issued a preliminary injunction on May 3, 2019. 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 enjoined nationwide in all applications.

The administration will likely appeal the decision. Vice President Mike Pence said that the Trump administration plans to challenge the right of federal district courts to issue such nationwide injunctions. At the Federalist Society's Executive Branch Review Conference on May 8, 2019, Pence opined: "The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them... In the days ahead, our administration will seek opportunities to put this question before the Supreme Court." Read Pence's full remarks on whitehouse.gov.

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" are not new; they 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 occured 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, unless DHS is successful in future appeals.

Other Considerations

Because departure from the United States can trigger a three or ten-year bar on reentry, travel is no longer a "simple" solution to a status violation. Given the serious consequences of the overstay and unlawful presence provisions, advisers would best serve students and scholars by explaining the consequences of visa overstay and unlawful presence, and by providing easy-to-understand and frequent communications about how to maintain their nonimmigrant status. Individuals needing legal advice on the impact of these provisions, including how the USCIS policy might impact their individual situation and options, should be referred to an experienced immigration attorney.