Nationwide Preliminary Injunction Issued, Enjoining USCIS Memo

May 6, 2019

On Friday, May 3, 2019, a district court judge for the Middle District of North Carolina issued a nationwide preliminary injunction, which enjoins the implementation of the recent U.S. Citizenship and Immigration Services (USCIS) policy memorandum, Accrual of Unlawful Presence and F, J, and M Nonimmigrants.

This USCIS policy memo was originally issued May 2018 and then updated Aug. 2018. We previously wrote in-depth about this policy memorandum here.

Before this policy memorandum was issued, students (F nonimmigrants), vocational students (M nonimmigrants), and exchange visitors (J nonimmigrants) would only have their accrual of “unlawful presence” start on the day after an application for an immigrant benefit was formally adjudicated, in which they were found by USCIS to have engaged in a violation of their nonimmigrant status. As a result of the USCIS policy memorandum’s issuance, F, M and J students would be found to be accruing unlawful presence on the date they engaged in whatever conduct caused the violation of nonimmigrant status. Accrual of “unlawful presence” is a serious matter, as accruing extensive amounts of it can subject individuals to three- and 10-year bars on re-entry to the U.S., depending on the amount of unlawful presence accrued.

As such, international students were penalized for violating the terms of their visas or overstaying, even if on accident.

What Do I Need To Know?

With USCIS now enjoined from enforcing the Aug. 2018 policy memorandum, international students in F-1 status now will not be found to accrue unlawful presence from the date they engage in conduct that could be a violation of their status. Rather, the status quo will return, where they will only be found to have accrued unlawful presence after a formal determination by USCIS in the context of a decision on an underlying immigration benefit application.

This injunction should provide more certainty to international students that they will not need to be concerned with arbitrary three- and 10-year bars to re-entering the U.S. for engaging in even unintentional or accidental violations of their nonimmigrant status.

Given recent USCIS policy changes in another area affecting international students, i.e. the amount of practical training in which they can engage after graduation, a significant and immediate impact of this injunction is that some international students cannot be found to be accruing unlawful presence by continuing to engage in curricular practical training approved by U.S. colleges and universities.

These students were at particular risk given USCIS had changed how it interpreted its own regulations on the amount of permissible practical training when it evaluated the students’ compliance with their immigration status.

Envoy is pleased to provide you this information, which was prepared in collaboration with Scott Kuhagen, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.

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