Federal District Court Permanently Enjoins Change in ‘Unlawful Presence’ Policy

March 16, 2020

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

U.S. District Judge Loretta Biggs of North Carolina issued a decision on February 6, 2020, permanently enjoining nationwide the Trump administration’s change in “unlawful presence” policy set forth in a U.S. Citizenship and Immigration Services (USCIS) memorandum, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Previously, the policy was temporarily blocked by the same judge while the underlying district court case developed.

The Presidents’ Alliance on Higher Education and Immigration said the policy “fundamentally and radically altered when F-1, J-1 and M-1 visa holders accrue unlawful presence.” Accrual would begin retroactively on the date a visa holder engaged in prohibited conduct instead of when they were adjudicated as “out of status.” Accrual of unlawful presence, the Alliance noted, “directly affects whether collateral inadmissibility immigration bars [e.g., the 3-year, 10-year and permanent bars] potentially affect and penalize visa holders who seek admission to the United States prospectively.” This made it substantially more likely that the accrual of unlawful presence would more easily occur as a result of “administrative, unintentional or innocent errors and lead to significant, unforeseen consequences, including being barred from the United States.” In response, higher education institutions, including members of the Alliance, filed a challenge against the policy. The Presidents’ Alliance also coordinated an amicus brief signed by more than 60 institutions of higher education in support of the legal challenge.

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