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A federal court has blocked U.S. Citizenship and Immigration Services (USCIS) from implementing an August 2018 policy memorandum that changed the way “unlawful presence” is calculated for foreign students and exchange visitors.
Key points:
Background: The plaintiffs include colleges and universities and two individuals who entered as F student visa holders but are no longer students. Both were recruited by the U.S. Army and instructed not to leave the country while waiting for basic training. Under existing law, anyone who accrues 180 days of unlawful presence in the U.S. and later leaves is barred from re-entering for three years (10 years if they accrue one year of unlawful presence). The court ruled that they were likely to succeed on their claims that USCIS violated rulemaking procedures by not publishing a proposed rule in the Federal Register and opening up a public notice and comment period; and that the policy memo conflicts with immigration statutes that distinguish between “unlawful presence” and “unlawful status.”
BAL Analysis: The ruling temporarily blocks USCIS from implementing the new policy that accelerated the unlawful presence calculation and carried serious consequences for foreign students and exchange visitors. The ruling requires USCIS to revert to the previous longstanding rules for unlawful presence calculation for the duration of the lawsuit. The government is expected to appeal the decision.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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