By Richard A Harding

A US District Court has invalidated a controversial USCIS policy shift.

In 2018, USCIS published a policy memorandum regarding when students and exchange visitors would begin to accrue unlawful presence.  Under that memorandum, students who violated their F-1, J-1, or M-1 status in any way would immediately be considered to be unlawfully present in the United States, even without a formal decision by a USCIS or other federal official.  This raised concerns among immigration practitioners, students, educators, and others about the effects this could have on students who unknowingly committed minor or technical violations of their status and thereby began accruing enough unlawful presence to trigger the 3- or 10-year bars.

These concerns drove several universities and associations to file a lawsuit in US District Court in 2018 (Guildford College v. Wolf, 18-CV891, N.D.N.C.) seeking a preliminary and ultimately a permanent injunction to prevent USCIS from enforcing that memorandum.  The Court granted a preliminary injunction in May 2019 to stop USCIS from enforcing the memorandum pending conclusion of the case.  Yesterday, after hearing arguments from the United States and the plaintiffs, the Court ordered the imposition of a permanent injunction against enforcement of the memorandum.  In its opinion, the Court first held that the memorandum was an exercise in judicial rulemaking that should have been promulgated through the notice and comment procedures of the Administrative Procedures Act (APA) to allow the public and interested parties to comment and require the government to consider and respond to those comments.  The Court further held that the memorandum was inconsistent with the language of the Immigration and Nationality Act and therefore that even if USCIS went through APA rulemaking, the memorandum would be unenforceable.  In conclusion, the Court wrote:

In sum, because the August 2018 PM was promulgated in violation of the APA’s notice-and-comment requirements, the Court will “hold it unlawful and set it aside”—not just for the named Plaintiffs, but for all those subject to its terms. Furthermore, because the unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the INA. Accordingly, the Court will vacate the August 2018 PM and permanently enjoin its application nationwide.

Order at 24-25.

The decision restores what had been the long-standing rule regarding unlawful presence for students and others show statuses in the United States are for “D/S” or duration of status.  USCIS policy has long been that such nonimmigrants are lawfully present in the United States with such an admission period until they are formally found to have violated their status through removal proceedings or a formal notification from an agency of the Department of Homeland Security, such as, for example, a decision from USCIS denying an immigration benefit.

USCIS may choose to appeal this decision to the US Court of Appeals for the Fourth Circuit.