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F, J, and M Students and Scholars Can Breathe Easy-Temporarily

On May 3, 2019, a district court judge for the Middle District of North Carolina issued a nationwide preliminary injunction, effective immediately, enjoining USCIS's memo on accrual of unlawful presence for F, J, and M nonimmigrants that took effect on August 9, 2018. The district court held that it is more likely than not that Plaintiffs would succeed in arguing that the Trump policy 1) violated the Administrative Procedure Act (“APA”) notice and comment procedures; and 2) substantively conflicts with the INA. This injunction will allow international students across the country breathe a temporary sign of relief.

Now, F, J, and M visa non-immigrants (a group that generally includes students, professors, and research scholars) who fall out of status will not accrue “unlawful presence” (“ULP”) until after an adjudicator determines the person is out of status. The Trump policy had changed this longstanding policy so that ULP would begin to accrue on the day that an individual falls out of status. Many criticize that the Trump policy unfairly penalizes even individuals who fall out of status without their knowledge or due to technical status violations. Individuals who accrue more than 180 days of ULP are barred from re-entering the U.S. for 3- or 10-years depending on how much ULP has accrued.

The temporary injunction could become permanent if the court ultimately rules in Plaintiffs’ favor. Should that happen, the Trump administration would be expected to appeal.