Court Stops USCIS from Enforcing Unlawful Presence Policy

Roy Maurer By Roy Maurer May 14, 2019
Court Stops USCIS from Enforcing Unlawful Presence Policy

​A federal judge temporarily blocked a 2018 policy penalizing foreign national students for overstaying or violating the terms of their visas.

Judge Loretta C. Biggs of the U.S. District Court for the Middle District of North Carolina ruled May 3 that the Trump administration's policy change related to when international students begin accruing "unlawful presence" in the U.S. was not properly processed and conflicts with immigration law. Enforcement of the policy has been stopped while a lawsuit brought by a group of students, colleges and the American Federation of Teachers is pending.

The U.S. Citizenship and Immigration Services (USCIS) policy went into effect Aug. 9, 2018. It determined that students' unlawful presence—time spent out of lawful immigration status—would be recorded retroactively from the date of their first violation.

"Prior to the policy memo, students did not accumulate unlawful presence unless USCIS made a formal finding of a violation of status or if they were ordered to be deported," said Amy Peck, an immigration attorney with Jackson Lewis in Omaha, Neb. "After the memo, a simple violation of status—knowing or unknowing—without any formal finding could start the unlawful presence clock. With unlawful presence came the possibility of becoming subject to the three- and 10-year bars to admission."

A three-year bar on re-entry to the country is triggered after 180 days of unlawful presence, and a 10-year bar is levied after more than one year of unlawful presence.

"The key to imposing the bar depends on the calculation of the date the authorized stay expired," said Robert Cohen, a partner in the Columbus, Ohio, law office of Porter Wright. "For foreign students who are admitted for the duration of status, there is no certain date by which they are told they must depart the United States. Therefore, in 1997 [the Immigration and Naturalization Service] announced a policy that students would be deemed unlawfully present only when an immigration officer or judge decided that they had violated their status. The student was informed of the decision and then given 180 days to depart the U.S. before the three- or 10-year bar would be imposed."

Cohen added that the policy change is critical because foreign nationals cannot extend or change the terms of their temporary visas if they have been found to have violated their status. "The only option would be to depart the United States, apply for a new visa, and return in the new or extended status," he said. "If the student is subject to the bar, they would be unable to return."

Critics of the policy have been concerned that the severe re-entry bans could be ordered on international students who don't realize they've violated the terms of their visas or whose status runs out while USCIS is processing their applications for different visas.

Jill Welch, deputy executive director for public policy at NAFSA, the leading nonprofit association dedicated to international education and exchange, said the policy change is hurting U.S. schools' efforts to compete for international students, as are the agency's attempts to scale back the Optional Practical Training program for new graduates and proposal to limit the length of student visas.

"Sixty institutions of higher education across the country signed on to an amicus brief contending that the uncertainty created by the memo would have a chilling effect on international students planning to attend colleges and universities in the United States," Peck said.

But USCIS director L. Francis Cissna asserted that the change is necessary to protect the integrity of student visas and reduce visa overstays. Students' overstay rate is higher than the rates of business and tourism visitors or other temporary workers.

"[Student visa holders] are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart or to obtain another lawful immigration status," Cissna said. "The message is clear: [Students] cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore."

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Violations of Federal Law

Judge Biggs decided that the USCIS policy memo violated both the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA).

Cohen explained that the basis for Biggs' decision was that the policy change required formal notice in the Federal Register, followed by an opportunity for the public to provide comments, which then must be considered by the agency.

"USCIS did not follow this required procedure, but instead argued that the memo was not a change in policy but a change in the interpretation of the statute," he said.

Biggs also decided it was likely that "the policy conflicted with the statute that created the concept of unlawful presence," Cohen said. "The plaintiffs suggested that there was a difference between a violation of status and unlawful presence. Congress used different words to describe these two concepts, and, while they are related, the words are different. The plaintiffs argued that if Congress had intended them to be the same concepts, they would not have used different words. The court agreed that if they were different concepts, a policy that treated the different words as if they were the same would not be valid."

What Now?

The case will likely be decided later this summer, Cohen said. "Until a final decision is made on the merits of this litigation, USCIS cannot find any student to have accrued unlawful presence retroactively," he said.



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