On May 3, 2019, the U.S. District Court for the Middle District of North Carolina issued an injunction (PDF, 274 KB) regarding PM-602-1060 and PM-602-1060.1, policy memoranda titled, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” issued on May 10, 2018, and Aug. 9, 2018, respectively. Due to the nationwide preliminary injunction, USCIS is preliminarily enjoined from applying the policies in these policy memoranda to F, J, and M nonimmigrants. Until further notice, USCIS will apply the prior policy guidance in AFM Chapter 40.9.2, issued on May 6, 2009: Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act (PDF, 2.90 MB).
BACKGROUND
Effective August 9, 2018, USCIS made fundamental changes to its policy on how an immigration status violation might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B). Under the new policy, USCIS started to count days of unlawful presence the day after an F, M, or J status violation occurs, unless the student is covered by an exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official or immigration judge made a formal finding of a status violation.
LITIGATION OVERVIEW
On October 23, 2018, a group of colleges and universities filed suit in U.S. District Court to challenge USCIS’s F, M, and J unlawful presence policy. The plaintiffs asked the court to declare unlawful and vacate the August 2018 policy memo, and to enjoin the enforcement or application of the memo. The policy continues in full effect while the court decides the case, however, unless the court issues preliminary injunctive relief. On January 10, 2019, the government filed a motion to dismiss the case.
- Read the complaint (10/23/2018). Guilford College et al v. Nielsen et al., Civil Action No. 18-891, filed in the United States District Court for the Middle District of North Carolina.
- Read the amended complaint (12/14/2018)
- Read the plaintiffs’ motion for preliminary injunction (12/14/2018)
- Read the amicus curiae brief (friend of the court) filed by numerous institutions of higher education on 12/21/2018.
On January 28, 2019, the District Court issued a Temporary Restraining Order (TRO) that blocks the Government from applying the unlawful presence memo on two named plaintiffs in the case, both of whom are MAVNI candidates. The TRO applieds only to these two named plaintiffs, and had no effect on any other party.
Jia Ye and Sen Li were the only individually-named plaintiffs in the Guilford complaint. Both of them had originally entered the United States as F-1 students and subsequently committed to enlist in the U.S. Army through the MAVNI program but have not yet been provided a report date for basic training. Their F-1 status appears to have lapsed since they entered the MAVNI process.
In its motion for a preliminary injunction, the plaintiffs had stated, “Because plaintiff Jia Ye may suffer irreparable harm on February 5, 2019—and plaintiff Sen Li will suffer irreparable harm shortly thereafter—we respectfully request that the Court enter relief on or before February 4, 2019.”
Issuing a preliminary injunction is generally possible only after a hearing. A temporary restraining order (TRO), however, is sometimes used as a short-term pre-trial stop-gap measure if a party convinces the court that they will suffer immediate irreparable injury unless the court issues the order.
In the Guilford case, the court issued a TRO “to allow the Court sufficient time to hear the pending matters, and to preserve the status quo and ensure that Plaintiffs Sen Li and Jia Ye can fully participate in this case pending further consideration of the motions by the Court, the Court will temporarily restrain application of the August 2018 Memorandum to Plaintiffs Jia Ye and Sen Li until after the Motion for Preliminary Injunction and Motion to Dismiss are heard and resolved.”
In the same order, the court set March 26, 2019 as the hearing date on the motions before it. The hearing was then rescheduled to April 4, 2019, and the Court issued the preliminary injunction described above on May 3, 2019.
Our Immigration Practice Group will be monitoring this case closely and providing further updates in due course for those who are interested in or may be affected by such policy changes as to the implications of the changes to the accrual of unlawful presence for nonimmigrant exchange visitors and students. It is absolutely essential that all affected parties be cautious and informed concerning the potential consequences of falling prey to any further changes concerning the accrual methodology.
For questions or concerns, contact our Immigration Practice Group at 718-539-1100 or info@jckimlaw.com.