Federal Judge Blocks Restrictive USCIS Immigration Policy on Unlawful Presence

February 11, 2020 | United States of America

On February 6, 2020, a federal judge issued a permanent injunction to stop a restrictive immigration policy that would bar entry to some international students and make it harder for them to remain in the U.S. after their legal status ended.

The decision concerns a USCIS memo, first issued in 2018, on calculating unlawful presence. The 2018 memo would start calculating unlawful presence earlier for certain individuals, including J1, F1, and M1 visa holders.  Rather than calculating “unlawful presence” when a visa holder was adjudicated as “out of status,” in accordance with previous USCIS policy, the new policy would allow unlawful presence to accumulate retroactively. This means that an individual who might otherwise be able to seek recourse for avoiding a three-year, 10-year, or permanent bar to admission into the U.S. would not have that opportunity. That change in policy could cause foreign scholars, students, and others to lose their legal status. The 2018 USCIS memo, U.S. District Court Judge Loretta Biggs ruled, violated the Administrative Procedure Act and federal immigration laws.