February 11, 2020
On August 9, 2018, the U.S. Citizenship and Immigration Services issued a Policy Memorandum that would have changed federal policy on the accrual of unlawful presence for F, J, and M visa holders. The current policy indicates that unlawful presence begins to accrue only at the time the F, J, or M visa holder is found through formal proceedings to be out of status and ordered excluded, deported, or removed by an immigration judge. If implemented, the change would have started the clock on unlawful presence from the day after the F, J, or M nonimmigrant completed their course of study, ceased to pursue their course of study, or engaged in unauthorized activity.
Shortly after its release, the policy was challenged by a group of higher education institutions including Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, Haverford College, The American Federation of Teachers, and two graduated students awaiting orders from the Army. The District Court for the Middle District of North Carolina issued a preliminary injunction of the unlawful presence policy in May of 2019, but on February 6, 2020, U.S. District Judge Loretta Biggs ordered the policy memorandum permanently “invalid, set aside, and enjoined nationwide in all applications.” The decision found the memorandum to be in fundamental and impermissible conflict with the plain text of the Immigration and Nationality Act, which states that an individual is deemed to be unlawfully present if they are “present in the United States after the expiration of the period of stay authorized by the Attorney General.” Some nonimmigrant visas, including those of F, J, and M categories, are not given exact dates of validity and are instead considered valid for “duration of status,” so they are only considered out of status once an adjudicator has declared them so.
If this policy memorandum change had been implemented, it could have had life-altering, disastrous effects for students and trainees, even for minor and unintentional violations like engaging in unauthorized employment, working extra hours, staying in the country with an expired I-94 record, and failing to report an address change. Unlawful presence, if accrued continuously for 180 days or longer, can result in being barred from the U.S. for three years. More than 365 days of continuous unlawful presence can result in being barred for a decade. The injunction of this policy is therefore being viewed as a welcome victory for immigration justice and a significant relief for international students and exchange visitors establishing connections and careers in this country.