Courts Vacate Unlawful Presence Memo for F, J, and M Students


U.S. District Court Judge Loretta C. Biggs declared invalid, set aside, and enjoined nationwide the May 18, 2018 USCIS memo, “Accrual of Unlawful Presence and F, J and M Nonimmigrants”, which provided, and subsequently clarified through a revision on August 8, 2018, a new policy for calculating accrual of unlawful presence for international students. Through these memos, the agency announced that, in order “[t]o reduce the number of [visa] overstays and to improve how USCIS implements the unlawful presence ground of inadmissibility under [the] INA,” it would be “changing its policy on how to calculate unlawful presence.”

Judge Biggs noted in her memorandum opinion and order, “The validity of the August 2018 PM turns on whether the Government’s characterization is correct: if it is a legislative rule, then it must be ‘set aside’ for failure to follow procedure; but if it is an interpretive rule, then the notice-and-comment requirements ‘do[ ] not apply.’… The Government contends that the August 2018 PM is merely ‘guidance’ which ‘directs adjudicators to consider a number of flexible factors when determining whether or how much ‘unlawful presence’ a former F, J, or M nonimmigrant has accrued.’, which Judge Biggs addresses, “However, it is difficult to read this ‘guidance’ as anything other than a mandate.”

Judge Biggs in favor of the plaintiff, Guilford College et al, ruled that USCIS was not merely issuing a new interpretation, but instead appeared to be substantively altering the way that it addresses unlawful presence for international students. “The memo goes on to explain that, in pursuit of those goals, ‘USCIS is now changing its policy on how to calculate unlawful presence.’ . . . This language, which evinces a desire to achieve a substantive policy outcome, strongly suggests ‘that more is involved than mere ‘interpretation.’ . . . Simply put, the August 2018 PM ‘endeavor[s] to implement the [INA],’ rather than merely interpret it, which is ‘the effect of a legislative rule.’”

In the end, the judge ruled in favor of the universities and international students, Guilford College et al. “Having concluded that USCIS violated the APA [Administrative Procedure Act] by promulgating the August 2018 PM, the Court must now determine the appropriate relief.’…[T]he Court cannot ignore the likelihood that the August 2018 PM, if left in effect, could alter the unlawful presence clocks for thousands, if not millions of nonimmigrant visa holders who are incapable of quickly bringing their individual cases and avoiding reentry bars.’… In sum, because the August 2018 PM was promulgated in violation of the APA’s notice-and-comment requirements, the Court will ‘hold it unlawful and set it aside’ – not just for the named Plaintiffs, but for all those subject to its terms. Furthermore, because the unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the INA [Immigration and Nationality Act]. Accordingly, the Court will vacate the August 2018 PM and permanently enjoin its application nationwide.”

We will continue to provide updates as it is likely that USCIS will appeal this decision to the Supreme Court for further review.

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