District Court Blocks USCIS Policy Penalizing International Students for Overstaying Visa | Weinstock Immigration Lawyers | Expert Advice & Representation in Immigration Law

On May 3, 2019, a district court judge for the Middle District of North Carolina issued a nationwide preliminary injunction enjoining the USCIS memo titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants’ that went into effect in August 2018.

Putting the Memo in context

The USCIS memo concerns F, J, and M nonimmigrant visa holders. An F visa holder is an international student who enters the U.S. to pursue an educational program. An M visa holder is a student who is studying at a vocational or technical school. International students on an F or M visa must be enrolled at an institution that participates in the Student and Exchange Visitor Program. A J visa holder is an individual participating in an “Exchange Visitor Program” authorized by the U.S. Department of State.

For over two decades, these visa holders, who entered the U.S. for “duration of status,” as opposed to a fixed time period, would begin to accrue unlawful presence on the day after a government official or immigration adjudicates him/her as out-of-status.

The memo issued by USCIS last year, however, changed the agency’s policy on how to calculate unlawful presence. Pursuant to the new policy, USCIS will backdate unlawful presence to begin on the date on which the underlying facts that gave rise to the status violation occurred.

Why is the Memo so harmful?

The memo essentially penalized international students for overstaying or violating the terms of their visas, even accidently, in the absence of bad faith or knowing conduct. Any individual who is “unlawfully present” in the U.S. for a period longer than 180 days is subject to a 3- or 10-year bar from reentering the country.

What’s next?

While the district court’s injunction forbids, for now, the implementation of USCIS’ new instructions on unlawful presence of F, M, and J visa overstay, the future is still uncertain. USCIS is likely to appeal the decision.

If you, or someone you know, are an international student holding an F, M and J visa who would like to remain in America for further personal or professional pursuit, contact us today and schedule a consultation with one of our experienced attorneys to discuss your immigration options!