U.S. District Court Enjoins the Implementation of “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” Memo

On August 9, 2018, U.S. Citizenship and Immigration Services (“USCIS”) published a Memo entitled Accrual of Unlawful Presence and F, J, and M Nonimmigrants (the “Memo”) which provided that F, J, and M nonimmigrant students would begin accruing unlawful presence in circumstances where they would not have previously done so. We discussed the meaning and impact of this memo in these previous articles:

• – Some International Students Will Begin Accruing Unlawful Presence on August 9, 2018; and
• – Unlawful Presence Bar Will Start to Apply on February 5, 2019 for Students Who Have Failed to Maintain Status.

After USCIS published the Memo, a group of colleges, universities, and student associations (“Plaintiffs), filed a law suit in the U.S. District Court for the Middle District of North Carolina against USCIS (“Defendants”). Plaintiffs argued that the Memo is invalid because: (1) it was issued without complying with the rulemaking procedures mandated by the Administrative Procedure Act (“APA”); (2) it is arbitrary and capricious under the APA; (3) it conflicts substantively with the statutory text of the Immigration and Nationality Act (“INA”); and (4) it violates the Due Process Clause of the Fifth Amendment.

Plaintiffs then filed a Motion for a Preliminary Injunction and Partial Summary Judgment based on the argument that the Memo’s issuance did not comply with rulemaking procedures required under the APA, and because the Memo conflicts with the statutory text of the INA. USCIS then responded by filing a Motion to Dismiss for lack of jurisdiction, or alternatively for failure to state a claim upon which relief may be granted.

On May 3, 2019, the court reviewed the motions by both parties. It denied the USCIS’s Motion to Dismiss and the Plaintiff’s Motion for Partial Summary Judgment. Fortunately, however, the court granted the Plaintiff’s Motion for a Preliminary Injunction, enjoining USCIS from enforcing the Memo nationwide while the lawsuit is pending until further order from the court.

Therefore, at this time, USCIS cannot find that an F, J, or M student has begun to accrue unlawful presence at the time a status violation occurs. Please note, however, that this is dependent on the court’s order being affirmed if the injunction is appealed and is only valid for the pendency of the lawsuit. If you have any questions regarding how this order may affect your case, please contact us to schedule a consultation.