As described in a prior post, on May 10, 2018, USCIS announced a policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (“memo” or “unlawful presence memo”). This memo was finalized on August 9, 2018. As background, F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees). In brief, the memorandum would have changed the start of accrual of “unlawful presence” for F, J, and M nonimmigrants from the day after DHS made a formal finding that the individual violated their nonimmigrant status to the day after the individual engaged in an unauthorized activity. Unlawful presence often has serious, irreversible consequences such as bars to re-entry to the United States. This memo essentially undid years of law and policy that allow for notice and due process before a bar is applied.
The memo has been the subject of litigation, and on February 6, 2020, in the case of Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), the U.S. District Court for the Middle District of North Carolina granted the Plaintiff’s motion for partial summary judgment and issued a permanent, nationwide injunction enjoining USCIS from enforcing the memo. As the court explains, an “unauthorized activity,” which would trigger serious consequences under the unlawful presence memo, could be something as minor as a student moving to a different dormitory without notifying USCIS. Under USCIS policy in effect prior to the unlawful presence memo, the student might have had the opportunity to correct such a violation, once notified, and avoid such serious consequences (i.e., immediate “unlawful presence” potentially leading to a 3- or 10-year bar from the U.S.); whereas under the unlawful presence memo the student’s unlawful presence would be backdated to the date of a violation of status – even an unknowing violation – potentially subjecting them to re-entry bars before any opportunity to cure. According to a number of U.S. higher education institutions, “[t]he DHS’s new “backdating” pronouncement introduces considerable uncertainty into the calculation of unlawful presence and needlessly exposes international students and exchange visitors to devastating re-entry bans.”
In enjoining USCIS from implementing this new method of calculating unlawful presence, the court first reasoned that “[the memorandum] is a legislative rule which could not have been properly issued without notice and comment” and therefore violated the Administrative Procedures Act (APA). The court then concluded that because “[the memorandum] conflicts with clear statutory text [of the Immigration & Nationality Act], no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the INA.” This suggests that USCIS may not cure the defect by simply re-issuing the memo with the public notice-and-comment period required by the APA, and that an act of Congress would be needed to enact such a far-reaching rule. Finally, the court reasoned that a nationwide injunction was appropriate, which means that the federal government is enjoined from enforcing it throughout the United States, and not just in North Carolina where the case was heard.
© Jewell Stewart & Pratt PC 2020