A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, May 3, 2019

Enforcement of F-1 Student Unlawful Presence Memo Blocked by Federal Court

A federal court today blocked the enforcement of the August 9, 2018 memo (and the related May 10, 2018 memo) issued by USCIS, a branch of the Department of Homeland Security.  These memos redefined the way how and when international students start to accrue unlawful presence in the United States.  Accrual of unlawful presence is a very serious violation, which can result in deportation and cancellation of visa status.  The change affected tens of thousands of international students present in the U.S. in F, J, and M visa status.  The Court held that the implementation of these memos must be stopped for now pending a final decision on the merits of the case.  The injunction is a huge relief for foreign students.

Since the implementation of a August 2018 memo that redefined how unlawful presence (illegally remaining in the U.S.) is counted for F, M, and J visa holders, foreign students and universities have been in an uproar. 

The change introduced "backdating", allowing officers to judge when a student had fallen out of status and began counting unlawful presence accrual from there. This is a massive difference from  the previous convention, which was to start counting unlawful presence the day an officer makes the judgement. The retroactive nature of the August 2018 memo makes it particularly controversial. Students can unknowingly lose their status due to technical violations and only realize it when they have accrued months or years of unlawful presence. If enough unlawful presence is accrued, the foreign student can be deported and may face a three or ten-year bar from reentering the country.

A group of universities, teachers, and two students decided to take action. They challenged the August 2018 memo in the United States District Court for the Middle District of North Carolina. Their main argument is that USCIS did not follow proper rule-making procedures, violating the APA (Administrative Procedure Act). The APA requires all rules follow a "notice-and-comment" process. Any rules that do not comply are invalid. USCIS did not publish notice of the proposed change nor the memo proposing the change in the Federal Register. Plaintiffs also argued that the memo's method of calculating unlawful presence conflicted with that of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which is existing law.

The Court granted preliminary injunction of the August 2018 and the preceding May 2018 memo, citing a likelihood of success on the merits listed in the above arguments. The memo's enforcement has been put on hold, nationwide. It means that immigration officers in the U.S. must now apply the old rule in reviewing international students' legal status. The injunction will also likely affect overseas consular officers' decisions in reviewing visa applications, although their decisions are normally not reviewed by federal courts. 

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