Permanent Injunction Issued to Enjoin Enforcement of F, M, J Nonimmigrant “Unlawful Presence” Policy Memo

In early February, a nationwide permanent injunction was granted by a federal district court, enjoining USCIS from enforcing its August 9, 2018, Policy Memorandum entitled “Accrual of Unlawful Presence and F, J and M Nonimmigrants.” The decision is important for many reasons: First, the decision saves thousands of F, J, and M nonimmigrants from suffering three- and 10-year bars to admission to the United States based on technical, often-unknowing violations of status that may have happened many years ago. The decision upholds the interpretation of “unlawful presence” for nonimmigrants in D/S status that no unlawful presence accrues until the D/S nonimmigrant has received formal notification that the U.S. government believes he or she has violated status, at which point the nonimmigrant has 180 days to leave the country to avoid incurring a three-year bar. Second, the court expressly agreed that the definition of unlawful presence in the immigration statute that requires the “expiration of a period of stay authorized by the Attorney General” cannot mean a violation of status and must mean the end of a specific period of time.

The decision also is important because it rejected USCIS’s attempt to make a very substantive change of policy and legal interpretation by issuing a policy memo without engaging in notice and comment rulemaking.

The government has 60 days to appeal this decision. If it does not appeal, the decision, including the permanent nationwide injunction, is final. Hopefully, the government will decide that an appeal is not wise, either because of a realization that issuing the Policy Memorandum was ill-advised or because it concludes that its chances of overturning the decision might be legally tenuous.

The case makes clear the importance of institutions willing to step up as plaintiffs in litigation challenging improper and unlawful government actions. If the three universities in this case had not been willing to be plaintiffs in this litigation, the enjoined policy would be in force today. As a result, many thousands of students and scholars would be barred from the United States or would be afraid to leave the U.S. for fear of being unable to return.