Federal District Court Issues a Temporary Restraining Order (TRO) in the "Unlawful Presence" Challenge

On August 9, 2018, USCIS published its finalized Unlawful Presence Memo regarding students and certain scholars, referred to as F, J, and M nonimmigrants. This change in USCIS policy regarding the accrual of unlawful presence for F, J, and M nonimmigrants not only has an immediate effect on students and exchange visitors and their dependents, but for those unaware of a violation of status, the resulting effect can be devastating and long lasting.

On October 23, 2018, a group of higher education institutions challenged the Unlawful Presence policy change that could open up more international students to harsh immigration penalties, and filed a lawsuit in North Carolina federal court (Guilford College v. Neilsen, 10/23/18) asserting that the policy change will hurt both the students and American universities.

This past January 28, 2019, the court granted a temporary restraining order, barring application of the new USCIS unlawful presence policy to the two individual named plaintiffs.  The TRO does not offer protection yet to other persons from the effects of the unlawful presence memorandum.

A hearing has been set for arguments on the merits on March 26, 2019.