Lawsuit Challenges U.S. Citizenship and Immigration Services’ Unlawful Presence Policy’s Legality

U.S. Citizenship and Immigration Services’ Unlawful Presence Policy for F visa holders, J visa holders, and M visa holders challenged in lawsuit

A group of Colleges filed suit 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.

USCIS Policy Memorandum

On August 9, 2018, USCIS announced it would change calculation of time spent in unlawful presence for F, J, and M nonimmigrants (i.e. students and exchange visitors). The memorandum took effect the day USCIS announced it, and it superseded any prior guidance for the topic.

The major change in the policy memorandum is how F, J, and M nonimmigrants accrue unlawful presence. Unlawful presence accrues from the date a nonimmigrant ceases pursuing their course study or the authorized activity. They will also accrue such status from the day after they engage in an unauthorized activity. If this took place before August 9, they would begin accruing unlawful presence beginning on August 9. If the event takes place on or after August 9, they accrue unlawful status from the date of the infraction.

F, J, and M nonimmigrants will also begin accruing unlawful status the day after they complete their course of study or program (plus authorized practical training and any authorized grace period); the day after their Form I-94 expires; and the day after an immigration judge orders the alien excluded, deported, or removed.

Originally, these nonimmigrants would only begin accruing unlawful status when an immigration judge found them to be in violation of the terms of their visa.

Noncompliance imposes certain reentry bars. For example, if the nonimmigrant remains unlawfully in the U.S. for 180 days, a three-year bar will be imposed on their reentry into the United States. With a year of unlawful presence, the nonimmigrant will be barred from reentry for a decade. If they attempt to reenter the U.S. during the period of a reentry bar, a lifetime ban may be imposed upon the individual.

This also affects those who are dependent upon the visa-holder for their lawful status, namely spouses and children.

USCIS’s Justification

USCIS cites a high rate of overstay among these nonimmigrant visa-holders to justify this policy memorandum. The lawsuit, however, argues that these overstay rates are misleading and inaccurate. Moreover, the plaintiffs argue that USCIS does not have the capacity to accurately measure these rates.

For Further Information

Read about the details of Guilford College v. Nielsen.

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.

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This information comes from AILA Do. No. 18102471.