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Litigation

US District Court Permanently Enjoins F-1 Unlawful Presence Memo

By Richard A Harding

A US District Court has invalidated a controversial USCIS policy shift.

In 2018, USCIS published a policy memorandum regarding when students and exchange visitors would begin to accrue unlawful presence.  Under that memorandum, students who violated their F-1, J-1, or M-1 status in any way would immediately be considered to be unlawfully present in the United States, even without a formal decision by a USCIS or other federal official.  This raised concerns among immigration practitioners, students, educators, and others about the effects this could have on students who unknowingly committed minor or technical violations of their status and thereby began accruing enough unlawful presence to trigger the 3- or 10-year bars.

These concerns drove several universities and associations to file a lawsuit in US District Court in 2018 (Guildford College v. Wolf, 18-CV891, N.D.N.C.) seeking a preliminary and ultimately a permanent injunction to prevent USCIS from enforcing that memorandum.  The Court granted a preliminary injunction in May 2019 to stop USCIS from enforcing the memorandum pending conclusion of the case.  Yesterday, after hearing arguments from the United States and the plaintiffs, the Court ordered the imposition of a permanent injunction against enforcement of the memorandum.