You may recall that several colleges had filed a lawsuit in October 2018 against DHS arguing that the August 9th Unlawful Presence memo was unlawful because it did not go through the required regulatory process, the policy change is arbitrary and capricious, it violates the 1996 statute that created the concept of unlawful presence, and violates Due Process.
The colleges argued that the Unlawful Presence memo “is intentionally designed to impose tens of thousands of reentry bars on F, J, and M visa holders each year” and will result in three- or ten-year bars of “untold numbers of international students and exchange visitors acting in good faith.” DHS had filed a Motion to Dismiss the lawsuit on January 10, 2019. DHS argued that the colleges do not have standing to bring a lawsuit (ie the colleges have not identified how they have been harmed by the policy) and that it is too soon to bring a lawsuit because no individuals named in the lawsuit have been harmed yet.
The colleges also filed a Motion for Preliminary Injunction on December 14, 2018 requesting that the memo should be suspended while the litigation is pending.
Today, the Court found that the colleges are likely to succeed on their claims that the August 9th Unlawful Presence Memorandum was promulgated in violation of regulatory procedures, and that the Policy Memorandum conflicts with the Immigration & Nationality Act. The Court therefore concluded that, under the circumstances of the case, a nationwide preliminary injunction is appropriate.
This means that DHS is blocked from enforcing the August 9th Unlawful Presence Memo nationwide, pending resolution of this lawsuit.
The August 9, 2018 Policy Memorandum changed how USCIS calculates unlawful presence for F-1 students in “duration of status.” This is important because unlawful presence can eventually lead to “inadmissibility,” meaning the individual can be barred from entering or remaining in the United States.
Prior to August 9, 2018, in the event that USCIS formally found a violation of F-1 status, the student would not begin accruing unlawful presence until the day after the decision was made.
Under this new memo which is currently blocked from being enforced, if an F-1 student is found by DHS to have failed to maintain status, he or she will begin accruing unlawful presence on the day after he or she engaged in the unauthorized activity that caused the status violation:
In other words, the memo had required unlawful presence to be calculated retroactively.
With this injunction, we revert back to the previous rules which had been in operation for over 20 years. That is, in the event that USCIS formally finds a violation of F-1 status, the student would only begin accruing unlawful presence the day after the decision is made.