International students score a big victory: Court changes how ‘Unlawful Presence’ is calculated for

On February 6, 2020, U.S. District Judge Loretta C. Biggs, stopped U.S. Citizenship and Immigration Services (USCIS) from changing how the agency determines when a foreign student or exchange visitor is “unlawfully present” in the U.S. “Unlawful presence” is defined by law as any time a foreign national spends in the U.S. after their authorized stay has ended.

Students and exchange visitors are often given “duration of status” while they’re in school or training. For years, USCIS’ policy for those admitted to the U.S. in duration of status was to begin counting unlawful presence from the day after an agency official determined they were out of status.

This way, the student/exchange visitor had a definite starting point to calculate the number of days they were unlawfully present. An individual who is unlawfully present in the U.S. for more than 180 days is subject to a penalty preventing them from returning to the U.S. for years.

USCIS issued a memorandum in August 2018 that changed this policy. Students and exchange visitors would now accrue unlawful presence beginning the day after they engaged in “unauthorized activity” that caused them to lose their status.

For example, a student could be hit with unauthorized activity by not realizing they had worked two more hours than the 20 hours they were authorized to work while school was in session. Unlawful presence would be counted even when the student or exchange visitor was unaware that they had violated the terms of their status.

This placed many international students and employees at risk of accruing unlawful presence and being penalized if they wanted to return after departing.

Guilford College and three other schools sued USCIS, the U.S. Department of Homeland Security, and their respective directors in federal district court in North Carolina over USCIS’ change in policy. In May 2019, the court ordered the government to temporarily halt enforcement of the new policy nationwide.

On February 6, 2020, a federal court found that USCIS’ new policy was unlawful.

USCIS’ change was unlawful because it conflicts with the “plain text” of the INA.

USCIS’ prior policy adhered to the INA because the agency would consider a duration of status “expired” after formally documenting a status violation. Only after the expiration did unlawful presence begin to accrue.

The outcome of the case is also significant because the court vacated (canceled) the memo and permanently prohibited USCIS from applying it.

The court rejected USCIS’ proposal that the court’s order should be limited to the named plaintiffs in the lawsuit, recognizing the importance of nationwide enforcement of immigration laws. The case involved only issues of law, with the court saying that:

“If left in effect, [it] could alter the unlawful-presence clocks for thousands, if not millions of nonimmigrant visa holders who are incapable of quickly bringing their individual cases and avoiding reentry bars.”

This case serves as an important reminder that USCIS should be challenged in court when it tries to pass off substantial changes to longstanding policies as interpretive or procedural.

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