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In August 2018, the United States Citizenship and Immigration Services (USCIS) published a memorandum that altered agency policy regarding the calculation of unlawful presence for F, J, and M nonimmigrants and their dependents. A federal district court judge has issued a nationwide preliminary injunction that prevents USCIS from implementing this policy.

August 2018 Memorandum and New Unlawful Presence Policy

The August 2018 memorandum altered longstanding policy and instead stated that F, J, and M nonimmigrants and their dependents who have violated any terms of their status would immediately accrue unlawful presence the day after the status violation occurred. The policy also stated that it would be possible for an F, J, or M nonimmigrant and their dependents to inadvertently violate their status and then trigger accrual of unlawful status without their realization. A foreign national who is unlawfully present for more than 180 days or one year or more is subject to a three-year or ten-year bar on reentering the United States and will not be eligible to apply for a visa, admission, or adjustment of status to permanent residency unless they are first granted a waiver of inadmissibility or some other form of relief.

Lawsuit Challenging the August 2018 Memorandum

In response to the August 2018 memorandum, several universities and two individuals challenged the new policy with a lawsuit, stating that it is contrary to statutory unlawful presence provisions and violates the Administrative Procedures Act and the Constitution’s Due Process clause.

Results of the Injunction

The nationwide preliminary injunction means that USCIS must revert to its prior rules related to unlawful presence while the lawsuit, Guilford College et al. v. McAleenan et al, U.S. District Court for the Middle District of North Carolina continues in court. However, the administration is expected to appeal this injunction.

Please do not hesitate to contact us if you have any questions regarding this matter.