Preliminary Injunction Issued on August 2018 Unlawful Presence Memorandum for F, J, and M Visa Holders

On May 18, 2018, USCIS issued a memorandum announcing that it will radically revise how unlawful presence is accrued for students and exchange visitors who fail to maintain their F, J, or M visitor status. For the information on the original memorandum, please click here. Unlawful presence is defined as presence after the expiration of the period of stay authorized by the Department of Homeland Security, or any presence without being admitted or paroled. Accruing more than 180 days, but less than one year, of unlawful presence can result in a 3-year bar from entering the United Sates. Accruing more than a year of unlawful presence can result in a 10-year bar from entering the country again. To learn more about unlawful presence waivers, please click here.

This memorandum was revised once in August, in which USCIS took a less strict review of the policy, instead, it clarified that:

• An F-1 or M-1 student who files a timely request for reinstatement of status will not accrue unlawful presence while their request is being adjudicated. An application is considered timely if it is submitted within five months of the status violation. If the application is approved, the F or M nonimmigrant will resume lawful status. If it is denied, the F or M nonimmigrant will resume the accrual of unlawful presence.
• A J-1 nonimmigrant will not be considered to have accrued unlawful presence if he or she submits a request for reinstatement to the State Department and it is approved.

For more information about the revision, please click here.

On May 3, 2019, A federal district court judge has issued a nationwide preliminary injunction that prevents USCIS from implementing this policy,

This decision has significant impact as anyone who has accrued more than 180 days or more of unlawful presence can be subject is a three-year or ten-year bar on reentering the United States. In addition, the original policy had a retroactive effect in which an F, J or M nonimmigrant could inadvertently violate his or her status and then trigger the accrual of unlawful presence without realizing it. For more information on unlawful presence and the potential waivers that exist for the bars, please click here.

What this means is that USCIS cannot apply the August 2018 unlawful presence policy until litigation on the issue is resolved. It is not clear what effect the order has on individuals who have already been found to be unlawfully present. However, the temporary reversal is positive news for F, J, and M nonimmigrants who, for the time being, can rely on the prior agency policy of only accruing unlawful presence after a definitive and affirmative determination from USCIS or an immigration judge.