Guilford College v. Nielsen

Guilford College v. Nielsen

A group of Colleges filed suit, known as Guilford College v. Nielsen, in the Middle District of North Carolina against Secretary of Homeland Security, Kirstjen Nielsen; Director of U.S. Citizenship and Immigration Services, L. Francis Cissna; and U.S. Citizenship and Immigration Services (USCIS) on October 23, 2018. The suit alleges that the USCIS August 9, 2018, policy memorandum “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” is unlawful and unconstitutional.

The plaintiffs allege that the policy is intended to bar tens of thousands of F, J, and M visa holders from reentry to the United States each year. They believe the punishment will banish many students and visitors acting in good faith. It will therefore harm the visa holders and result in unnecessary financial loss of revenue on the institutions that sponsor them, via lost tuition dollars and/or highly trained employees, and communities, which benefit from the discretionary expenditures of such visa-holders.

In Guilford College v. Nielsen, the plaintiffs allege the policy is unlawful for four reasons:

• The policy memorandum is in violation of the Administration Procedure Act (APA);
• It is arbitrary and capricious;
• It violates the statutory text as laid out by Congress in 1996;
• And, it also violates the Due Process Clause, or the Fifth and Fourteenth Amendments.

Alleged Implications of the Policy

Falling Out-of-Status

This new policy would preordain the actions of USCIS officers in all cases within the scope of this policy. This is compounded by the doctrine of consular non-reviewability, which precludes judicial review of any USCIS determination. Therefore, there is no meaningful way for most affected parties to challenge the determination and subsequent reentry bar in their cases.

The plaintiffs argue in Guilford College v. Nielsen that the policy will dramatically affect many well-intentioned individuals because many seemingly innocuous actions could cause the visa-holder to fall out-of-status without their knowledge. These include:

• Failing to update the Designated School Officer of the change to information, such as a change in address;
• Failing to obtain proper approval to drop below the minimum course load;
• USCIS may retroactively deny such a request;
• Accidently exceeding the maximum allowed 20-hour workweek;
• Any employment by a spouse or child of a visa-holder, even as seemingly innocuous as babysitting;
• A simple error made by the Designated School Officer;
• And, a myriad of issues that could affect their curricular practical training and optional practical training.

Furthermore, the plaintiffs fear that because of the severe backlogs at USCIS currently, visa holders may not learn of their infraction until they have little to no time to avoid incurring a reentry bar.

Requested Relief

The plaintiffs request the Court declare the August 2018 policy unlawful and vacate it. They also ask that the Court enjoin USCIS from enforcing the policy.

For Further Information

This blog post does not serve as legal advice and does not establish any client-attorney privilege. Do not take any action based on the information contained in this post without consulting a qualified immigration attorney. Therefore, if you have any questions, please do not hesitate to contact our legal team directly.

Find us on LinkedIn.

This information comes from AILA Doc. No. 18102471.