On August 8, 2018, DHS issued a new policy that announced that foreign students would begin accumulating “unlawful presence” if any violation of status had occurred, whether known to the student or not. On May 3, 2019, in Guilford College et al. v. DHS, Judge Loretta C. Biggs in the U.S. District Court for the Middle District of North Carolina issued a nationwide preliminary injunction stopping DHS from enforcing its new policy while the case before her was pending.

Prior to the August 8th 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 removed, deported or excluded. 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 ten-year bars to admission.

In Guilford, the court found that the plaintiffs were likely to succeed on two counts:

  • That the issuance of the August 8th policy memo violated the Administrative Procedure Act; and
  • That the policy memo conflicted with the text of the Immigration and Nationality Act.

Judge Biggs concluded that although DHS allowed for a period of public comment on the policy memo, it did not publish the new policy in the Federal Register and it “did not provide a reasoned response” to the comments it received. Judge Biggs also concluded by “redefining ‘unlawful presence’ to begin to accrue on the day that a nonimmigrant’s lawful status lapses, the Policy Memorandum renders both concepts – ‘unlawful presence’ and ‘unlawful status’ – essentially synonymous” while Congress deliberately made a distinction between the two.

Sixty institutions of higher education across the country signed onto 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.

The outcome of this case may have important consequences for students who were caught off-guard by the August 8th policy memo.

The Administration has not yet responded to the Court’s ruling. DHS could appeal. In the meantime, Judge Biggs is moving the case along. All replies and responses to motions for summary judgement are due by May 30, 2019. Jackson Lewis will continue to provide updates as the litigation progresses.