Lawsuit Challenges New USCIS Policy on 'Unlawful Presence' for Foreign Students and Exchange Visitors
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
In a new lawsuit filed in the U.S. District Court for the Middle District of North Carolina, several institutions of higher education have challenged a recently announced Trump administration policy, effective August 9, 2018, changing the calculation of the number of days of "unlawful presence" for nonimmigrant foreign students from the date U.S. Citizenship and Immigration Services (USCIS) or an immigration judge finds a violation or orders the student removed to the date the status lapsed.
The complaint states that in 1997, the United States adopted a clear policy governing the implementation of the immigration statute. Recognizing that the determination of whether an individual is “unlawfully present” in the United States is complex and will often turn on administrative discretion, the United States established objective rules that provided visa holders notice. If the authorized period of stay ended on a date certain on which the individual was required to leave the country, unlawful presence began following that date. And for all individuals, unlawful presence began the day after either a government official or immigration judge made a determination that the individual was out-of-status. This provided well-intentioned individuals an opportunity to cure their circumstances and remain in the country—or to depart the country within 180 days. Either way, individuals acting in good faith had an opportunity to avoid imposition of a three- or ten-year reentry bar.
Most international students enter the United States on F or M visas, while some enter on J visas, the complaint notes. Many international researchers, scholars, and professors at higher education and research institutions enter the country on J visas for exchange visitors. In general, when F, J, or M visa holders enter the country, they are not supplied with a date certain on which they must depart. Rather, their visas are valid for the “duration of status,” or “D/S.” For more than two decades, the United States has held that the unlawful presence clock for these individuals begins on the day after a government official or immigration judge adjudicates the individual as out-of-status. That is, unlawful presence begins at the point that an F, J, or M visa holder is provided unequivocal notice that the government believes that the individual is out-of-status.
Now, based on the August 9, 2018, USCIS memorandum, when a government official or immigration judge determines that an F, J, or M visa holder is out-of-status, the unlawful-presence clock will be backdated to the day on which the agency concludes that the visa holder first fell out-of-status. The complaint states that the immigration system "is beset with processing delays, and many of these status determinations are made when an individual is applying for new immigration benefits."
Thus, the new policy’s use of a backdated unlawful-presence clock "will render tens of thousands of F, J, and M visa holders subject to three- and ten-year reentry bars without any opportunity to cure," the complaint states. "This policy, accordingly, will result in the three- or ten-year banishment of untold numbers of international students and exchange visitors acting in good faith."
Moreover, the complaint notes, by disrupting the ability of these individuals to continue studying at their schools—or continuing their research, teaching, or other scholarly pursuits—the August 2018 policy memorandum fundamentally upsets student-school and employee-school relationships. This results in concrete, significant harms to colleges and universities, including through the loss of irreplaceable community members, loss of tuition dollars, and loss of trained employees.
The complaint asserts that the new policy is unlawful for several reasons, including, among other things, that the defendants "failed to undertake the notice and comment required in these circumstances," such as by not publishing advance notice in the Federal Register and responding to public comments, and by not complying with the Administrative Procedure Act.