Last Updated on February 23, 2023
A federal judge issued a permanent nationwide injunction on Thursday that blocks a 2018 action from the Trump administration that would have made it harder for foreign nationals to remain in the U.S. after their legal status ran out.
U.S. District Court Judge Loretta Biggs of North Carolina ruled that the policy conflicts with immigration law, and in addition, should have been subject to public "notice and comment" before it was implemented.
What was the policy?
The policy memorandum, in place from U.S Citizenship and Immigration Services (USCIS) was initially issued in May 2018 and updated that August, before being issued a preliminary nationwide injunction in May of last year.
The memo would have changed the method in which accrual of unlawful presence for students (F nonimmigrants), vocational students (M nonimmigrants), and exchange visitors (J nonimmigrants) was calculated. 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 who were unaware they had overstayed their visas could be found to have been in violation and had their dates of unlawful presence backdated, resulting in immediate penalties. Previously, students had to have been given notice of the violation before they could begin to accrue unlawful presence.
What happens next?
The Trump administration did not appeal the preliminary injunction in the case last year, but will have another opportunity now to appeal the final ruling.
In the meantime, International students in F, J or M status now will not accrue unlawful presence from the date they engage in conduct that could be a violation of their status. Rather, the status quo will return, and 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 ruling should provide relief to international students, who will no longer need to worry about receiving serious penalties for an accidental violation without first receiving notice from USCIS,” Global Immigration Associates Managing Partner Sara Herbek said.
The ruling should relieve university administrators as well, many of whom argued that the memo would have threatened foreign students, scholars, and others who sometimes lose their legal status when switching schools or for other reasons.
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Envoy is pleased to provide you this information, which was prepared in collaboration with Sara Herbek, who is a Managing Partner at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.