Washington, D.C., May 28, 2020: In February 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction enjoining USCIS from enforcing the Aug. 9, 2018, policy memorandum titled, ‘Accrual of Unlawful Presence and F, J, and M Nonimmigrants.’ USCIS will continue to apply the prior policy guidance found 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”.

The 2018 Policy Memorandum, entitled “Accrual of Unlawful Presence and F, J and M Nonimmigrants” (August 9, 2018) would have required USCIS to find that F, J and M students begin incurring in unlawful presence on the day that they fall out of status for any reason.

Traditionally, under the Immigration and Nationality Act, people are not “deemed to be unlawfully present” until “after the expiration of the period of stay authorized by the Attorney General.” 8 U.S.C. § 1182(a)(9)(B)(ii). The Immigration and Nationality Act and USCIS Regulations further provide that F, M and J nonimmigrants are admitted to the United States on “Duration of Status”, meaning that they are not given a fixed date for the termination of their immigration status in the U.S. because the end-date of their studies frequently varies. Duration of Status is typically evidenced by a “D/S” annotation on the passport I-94 stamps of F, M and J nonimmigrants. Thus, traditionally, F, M and J nonimmigrants could only start accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.

The 2018 Policy Memorandum sought to declare F, M and J nonimmigrants admitted for Duration of Status to begin accruing unlawful presence as soon as any of the followed occurred:

• • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity.
  • The day after the F, J or M nonimmigrant engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The Federal Court found that the 2018 Policy Memorandum effectively amended the Immigration and Nationality Act and the controlling USCIS regulations on the matter of the period of admission of F, M and J nonimmigrants. Thus, the Court found that USCIS had overstepped its statutory authority, and violated the Administrative Procedures Act in the process.

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