On May 3 of this year, the U.S. District Court for the Middle District of North Carolina issued a decision in litigation pertaining to a USCIS policy memo that set forth a new policy regarding foreign nationals holding nonimmigrant vis statuses valid until “D/S,” or duration of status. This ruling has a number of important implications for people holding F, J, and M statuses, as well as those holding other nonimmigrant visa statuses.
Before discussing the implications of this ruling, however, it is first necessary to provide background information for context. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or IIRAIRA, set forth the concept of unlawful presence; the term refers to foreign nationals who enter the United States without being admitted or paroled or who stay beyond their period of authorized stay, such as people who remain in the United States beyond the expiration of their nonimmigrant visa status. Foreign nationals who accrue more than 180 days of unlawful presence may be subject to a three-year bar from entering the United States, while those who accrue more than a year may be subject to a ten-year bar. One ambiguity in this concept is that some foreign nationals—particularly those who enter on F, J, and M statuses—are authorized to stay for the duration of their status, or “D/S,” as opposed to those who are authorized to stay until a fixed date.
Since IIRAIRA was passed, the INS and later USCIS policies held that unlawful presence for those in D/S status began to accrue only when those foreign nationals were notified by the government that they had violated status. However, on August 9, 2018, USCIS issued a policy memo that reversed this determination. This new policy memo indicates that those in F, J, or M status begin to accrue unlawful presence immediately upon violating their status, regardless of whether or not they have been notified of their violation. This policy went into effect without notice or public comment under the Administrative Procedure Act (APA).
In response to this policy change, two individuals, four universities, and the American Federation of Teachers (which also represents educators in higher education) filed a complaint in federal court that sought to inhibit and overturn the new policy. The complaint rested on two factors: that the USCIS did not comply with the APA by not permitting public comment on the proposed rule and that the policy is inconsistent with section 212(a)(9) of the Immigration and Nationality Act (INA). The government in turn filed a motion to dismiss the complaint based on the ripeness of the issue and the plaintiffs’ standing. The court, however, rejected the government’s motion and granted the plaintiffs’ motion for preliminary injunction, barring the implementation of the August 9 policy memo. In her decision, the Honorable Loretta C. Briggs held that the plaintiffs are likely to succeed in challenging the policy memo for conflicting with the INA. She also concurred with the previous understanding that unlawful presence begins only when USCIS determines that a foreign national is out of status. The court has ordered an accelerating briefing schedule for the plaintiffs’ motion for summary judgment, set to begin on May 13 and ending on May 30.
The judge’s granting of a preliminary injunction and her seeming agreement with the logic of the plaintiffs’ arguments inspires some hope that the court will ultimately side with the plaintiffs and overturn the August 9 policy memo. However, a decision is not expected until at least June. In the meantime, those who could be affected by the policy memo—those in F, J, or M status—might be better off not travelling internationally, as doing so could potentially trigger a bar to re-entering the U.S. depending on the court’s final ruling.