As described in a prior post, on May 10, 2018, USCIS announced a policy memorandum titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (“memo” or “unlawful presence memo”). This memo was finalized on August 9, 2018. As background, F, J, and M nonimmigrant visas are for international students, scholars, and participants in international educational/cultural exchange programs (including interns and trainees). In brief, the memorandum would have changed the start of accrual of “unlawful presence” for F, J, and M nonimmigrants from the day after DHS made a formal finding that the individual violated their nonimmigrant status to the day after the individual engaged in an unauthorized activity. Unlawful presence often has serious, irreversible consequences such as bars to re-entry to the United States. This memo essentially undid years of law and policy that allow for notice and due process before a bar is applied.
The memo has been the subject of litigation, and on February 6, 2020, in the case of Guilford College et al. v. Chad Wolf, U.S. Department of Homeland Security et al., No. 1:18CV891 (M.D. N.C. Feb. 6, 2020), the U.S. District Court for the Middle District of North Carolina granted the Plaintiff’s motion for partial summary judgment and issued a permanent, nationwide injunction enjoining USCIS from enforcing the memo