opt.jpgOn May 3, 2019, a Federal Judge issued an injunction preventing the USCIS from enforcing its August 2018 unlawful presence memo which attempted to change the rules retroactively for F and M students and J exchange visitors.

The plaintiffs in Guilford College v. USCIS maintain that the government did not follow the proper administrative procedures in issuing the memo and that the new unlawful presence rule conflicts with the law.

The Federal Judge agreed, finding that the USCIS Policy Memorandum is a “legislative rule” and that the government failed to comply with the Administrative Procedures Act which requires that the rule be published in the Federal Register and that the public be allowed to comment on the rule.

​​​​​​For over 20 years, a student or a J exchange visitor who was admitted to the United States for Duration of Stay (D/S) did not accrue any unlawful presence unless he was notified that he was not in lawful status by either the DHS or the EOIR.

2018 Unlawful Presence Memo for Students & Exchange Visitors

However, on August 9, 2018, the DHS published a policy memorandum which greatly expanded the ways in which a student or exchange visitor could accrue unlawful presence. The memo retroactively changes what constitutes unlawful presence for these persons. If the government determines that a status violation occurred in the past, unlawful presence may start to accrue on August 9, 2018 even if the person has never been informed of this by the government. This could lead to many unexpected and unfortunate results.

Here is an example:

Let’s say that a foreign-born person was admitted as a biology student at Stanford University in 2004. She obtained her Ph.D. in 2008 and proceeded to get OPT and STEM-OPT after graduation. Then, she started working for a biotech firm which sponsored her for H-1B status.

After writing a series of papers in prestigious journals and winning a number of awards, her employer sponsored her for a green card as an EB-1 Outstanding Researcher and the USCIS granted her petition.

In March 2019, her priority date became current, and she was scheduled for an immigrant visa appointment at the U.S. Embassy in her country. At her interview, the consular officer examined her college transcripts and learned that in the Fall Semester in 2005, over a decade prior to her green card interview, she failed to take a full load of classes because her child was ill, and she had to drop one class in order to take care of him.

Under the August 9 memo, she would be denied an immigrant visa because her failure to be a full-time student for one semester in 2005 would cause her to start accumulating unlawful presence in the U.S. starting on August 9, 2018. And then, on February 5, 2019, 180 days after the publication of the new regulations, once she left the U.S., she would be subject to the 3-year bar for returning to the U.S.

Her green card application would be denied and she would not be able to return to the U.S. for 3 years. If the same scenario were to occur after August 9, 2019, she would not be able to return to the U.S. for 10 years.

Now, the Federal Court has temporarily enjoined the government from applying the 3 and 10 year bars to her or to anyone else in her position.

Why the Unlawful Presence Memo is Problematic

The reason why the August 9 unlawful presence memo for students and exchange visitors is problematic is obvious.

Under the law, there are 3 ways in which a person can accumulate unlawful presence:
  1. By entering the U.S. without inspection;
  2. By overstaying their period of lawful status in the U.S.; or
  3. By violating their immigration status.

Persons who enter the U.S. without inspection begin to accumulate unlawful presence from the moment that they enter the country.

Persons who enter the U.S. on a temporary visa start to accrue unlawful presence as soon as their temporary status expires.

In each of these cases, it is crystal clear when unlawful presence begins.

However, for status violators, it is often unclear when they begin to accrue unlawful presence.

For example, a person can lose his student status, only to have it reinstated down the road. A person can get a work permit (OPT) after graduating from a university in the U.S. What happens when he quits his job or is terminated? When does he start to accrue unlawful presence? Students and exchange visitors cannot overstay their status because they are not admitted to the U.S. until a particular date. Instead, they are admitted for the duration of their stay (“D/S”).

Because of these reasons and many others, the long-standing government rule provided that unlawful presence for students and exchange visitors begins only when the DHS or an Immigration Judge determines that they are out-of-status and informs them of this fact.

The August 9, 2018 policy memo attempted to overturn this unlawful presence rule, and to punish students and exchange visitors for things that happened long ago, retroactively categorizing them as unlawful presence.

Imagine a consular officer abroad having to determine whether a student or exchange visitor violated his status many years ago. Such a finding could result in the person’s green card application being denied and subjecting him to a 3 or 10-year bar to reentering the U.S. Worse yet, there is no way to appeal such a decision.

The government’s response to plaintiffs’ amended complaint is due May 13, 2019.