Federal Court Permanently Blocks USCIS’ Unlawful Presence Policy for F, M, & J Nonimmigrants

On February 6, 2020, the federal district court in North Carolina issued a permanent nationwide injunction blocking the U.S. Citizenship and Immigration Services (“USCIS”) from implementing its August 9, 2018 policy memorandum that sought to change the way USCIS calculates the accrual of unlawful presence for F and M foreign students and J exchange visitors in the United States. Under this policy, unlawful presence would start to accrue not at the time the foreign student or exchange visitor is formally found to be out of status as previous policy dictated, but from the time a USCIS adjudicator determines the status violation first occurred. In the order, the federal district court judge stated that the USCIS unlawful presence policy “ran afoul” of federal law and that the new procedures in August 9, 2018 policy memorandum should have been subject to public notice and comment under the Administrative Procedure Act (APA) before it was implemented. As such, the court ruled:

The United States Citizenship and Immigration Services’ August 9, 2018 memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications.

The USCIS has been enjoined from applying the unlawful presence policy memoranda to F, J, and M nonimmigrants by a May 3, 2019 preliminary nationwide injunction issued by the same federal district court. As a result of the recent permanent nationwide injunction, the USCIS will continue to apply its prior policy guidance issued on May 6, 2009.