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. 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 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.

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."

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