On August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B). A February 6, 2020 nationwide permanent injunction continues to block enforcement of this policy. 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 now back in effect, 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. See NAFSA's Unlawful Presence page for background.

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.

Higher Education's support for the lawsuit

In a December, 2018 message to NAFSA members, Bonnie Bissonette, NAFSA Vice President for Public Policy and Practice notes, "As the decision in this case will apply to all international students and exchange visitors engaged in higher education, there may be an opportunity for other higher education institutions to join an amicus brief to support the legal challenge to the policy. Many of us have not been involved in this type of litigation, so I want to provide a resource to help respond to concerns and questions. We have placed on the NAFSA website brief backgrounder developed by the Presidents’ Alliance for Higher Education and Immigration in consultation with the attorneys representing the 4 higher education plaintiffs in this case."

NAFSA had also been advocating against the unlawful presence policy since DHS first proposed it. USCIS published a draft policy memorandum on May 11, 2018, and on May 24, 2018, NAFSA CEO and Executive Director, Esther Brimmer submitted a comment letter to USCIS, urging the agency to withdraw the proposal and leave the prior rule in place.

Future Rulemaking

Although litigation on the unlawful presence policy has ceased for now, 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. 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."

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