“In a stunning victory for F, J, and M nonimmigrant students battling unlawful presence policy, a federal district court in North Carolina has granted a permanent injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The Trump Administration’s August 2018 policy would have rendered students in F, J and M status unlawfully present for minor technical violations thus subjecting them to 3 and 10 year bars from reentering the United States.
The February 6, 2020 Guilford College et al v. Chad Wolf et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction holding the August 2018 policy unlawful not just for the Plaintiffs “but for all those subject to its terms.” In addition to summarizing the Court’s well-reasoned justifications for granting Plaintiff’s summary motion in Guilford College, I also reflect on the Court’s justification for granting a nationwide injunction shortly following Justice Gorsuch’s disapproval of such nationwide injunctions in Department of Homeland Security v. New York on January 27, 2020.
As background, the August 2018 policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.
Prior to the August 2018 policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.
By Cyrus Mehta for LEXIS NEXIS
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