District Court Issues Nationwide Injunction Against USCIS’ Unlawful Presence Memo Affecting F, J and M Nonimmigrants

District Court Issues Nationwide Injunction Against USCIS’ Unlawful Presence Memo Affecting F, J and M Nonimmigrants

A federal district court judge issued a nationwide preliminary injunction that temporarily blocks the U.S. Department of Homeland Security (DHS) from implementing a policy under which F, J and M nonimmigrants and their dependents who violate the terms of their status start to accrue unlawful presence immediately. 

The order was issued in the U.S. District Court for the Middle District of North Carolina on May 3, 2019. U.S. Citizenship and Immigration Services (USCIS) must revert to its prior guidance on unlawful presence accrual pending the resolution of the case that challenges the legality of the agency’s new policy. The government is expected to appeal the injunction.

USCIS issued a memo in August 2018 that significantly changed the way unlawful presence is calculated following F, J and M nonimmigrant status violations. Under the revised policy, the agency would start counting unlawful presence the day after a violation occurs. In addition, visa holders who inadvertently trigger the accrual of unlawful presence could retroactively be found in violation of their status.

The lawsuit, Guilford College et al. v. DHS, was filed on October 23, 2018 by two students, the American Federation of Teachers, Guilford College in North Carolina and its International Club, as well as other colleges. The plaintiffs asked the court to declare the August 2018 USCIS policy memo unlawful and to vacate it.

Judge Loretta C. Biggs sided with the plaintiffs in her ruling. She concluded that the injunction was necessary as the revised USCIS regulations would result in “irreparable harm” to visa holders. The temporary reversal brought about by the court injunction is positive news for F, J and M nonimmigrants. The agency must enforce its prior policy in which unlawful presence starts accruing only after a USCIS official or immigration judge formally finds a visa holder to be in violation of status.