Lawsuit Challenges Legality of USCIS Unlawful Presence Policy for Fs, Js, and Ms; Members of Congress Weigh In, Too

Guilford College filed a lawsuit challenging the legality of an 8/9/18 USCIS policy memorandum, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” as contrary to the statutory unlawful presence provisions, and violative of the Administrative Procedure Act and the Due Process Clause of the U.S. Constitution. Guilford asks the court to vacate the memorandum, declare it unlawful, and enjoin DHS from applying it. Meanwhile, a group of 18 Senate Democrats urged USCIS Director L. Francis Cissna to rescind the August 9 policy because it results in international students being removed or barred from reentry who inadvertently violate the terms of their visa.

The policy provides that individuals on F-1 student visas (and J and M visa holders as well) would immediately begin accruing unlawful presence in the United States if they left school or worked without authorization, even if they were never notified of the violation by USCIS or an immigration judge. Under this new policy, international students would become subject to removal and barred from reentry for up to 10 years before they even know that they have violated the terms of their visa.