Permanent Injunction of Unlawful Presence for F-1 and J-1 Visa Holders

On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states:

"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."

On May 3, 2019, the same court had issued a preliminary injunction that temporarily halted enforcement of the 2018 policy while the underlying case was resolved. In the interim, USCIS returned to applying the prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit. The February 6, 2020 decision and order means that the 2009 policy will continue to be in place.

DHS reserves the right and might appeal the decision. Iandoli Desai & Cronin will continue to monitor any future appeals.