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Court Issues Nationwide Injunction Preventing USCIS from Enforcing Policy Memo Changing Accrual of Unlawful Presence for F, J, and M Nonimmigrants

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On August 8, 2018, DHS issued a policy memorandum directing USCIS to change the way in which the agency counted the days of unlawful presence for F, M, and J status violators.

Under that policy memorandum, F, M, and J nonimmigrants who accrued more than 180 days of unlawful presence during a single stay, and then departed the United States, would trigger either a 3- or 10-year bar to admission depending on the period of unlawful presence accrued in the United States prior to departure. The new policy would begin counting the days of unlawful presence the day after an F, M, or J status violation, unless an exception applied.

These bars would prevent the foreign national from applying for an immigration benefit in the future, without the approval of a waiver of inadmissibility.

This policy was to become effective on August 9, 2018; however, it quickly grew controversial and inspired a slew of lawsuits. Prior to this attempted policy change, USCIS did not begin counting a period of unlawful presence until a USCIS immigration official or immigration judge made a formal finding of a status violation.

One month after the release of the memorandum, several colleges and universities filed suit in the U.S. District Court opposing the policy change. The Plaintiffs requested that the Court declare the policy unlawful and sought an injunction to prevent the policy from being implemented Guilford College et al v. Nielsen et al.

On January 28, 2019, the District Court granted a Temporary Restraining Order (TRO) preventing the government from enforcing the policy change on the parties involved in the case.

On May 3, 2019, the District Court granted a nationwide preliminary injunction, preventing DHS from enforcing and/or implementing the policy change, pending resolution of the lawsuit.

In an opinion penned by District Judge Loretta Biggs, the Judge found the Plaintiffs likely to succeed on the merits of their claim that the August Memorandum was adopted by DHS in violation of the Administrative Procedure Act (APA) and that granting the injunction was clearly in the public’s interest.

To read the judicial order please click here.