Injunction Issued on Unlawful Presence Policy for F-1 and J-1 Visa Holders

The US Court grants an injunction, blocking the August 9, 2018 Policy Memorandum: “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” Several colleges had filed a lawsuit in October 2018 against the Department of Homeland Security arguing that Unlawful Presence memo was unlawful because it did not go through the required regulatory process, the policy change was arbitrary and capricious, it conflicted with the 1996 Immigration and Nationality Act that created the concept of unlawful presence, and violated the Due Process Clause of the Fifth Amendment.

The Court therefore concluded that, under the circumstances of this case, a nationwide preliminary injunction is appropriate. Defendant United States Citizenship and Immigration Services (USCIS) shall be enjoined from enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit. With this injunction and until further order of the Court, we revert back to the previous rules which had been in operation for over 20 years. That is, in the event that USCIS formally finds a violation of F-1 status, the student would only begin accruing unlawful presence the day after the decision is made.