On Friday, May 3, a Federal District Judge in North Carolina enjoined the Trump Administration’s effort to change the immigration policy on “unlawful presence” as it is applied to foreign students, in Guilford College et al. v. McAleenan, et. a.l. The concept of unlawful presence was first introduced into the immigration laws in 1996 to impose a penalty on those who remain in the U.S. after their authorized period of stay expires. This penalty, a bar, known as the “3/10-year bar,” is imposed from the day the foreign national departs the U.S., preventing their return for either 3 or 10 years, depending on whether they remained more than 180 days or 365 days after their authorization expired.
The key to imposing this bar, however, depends on the calculation of the date the authorized stay expired. For foreign students, who are admitted for the duration of status (d/s), there is no certain date by which they are told they must depart the United States. Therefore, in 1997 Legacy INS announced a policy that students would be deemed unlawfully present only when an immigration officer or Immigration Judge made a determination that they had violated their status. In the event such a determination was made, the student was informed of the decision and then given 180 days to depart the U.S. before the 3- or 10-year bar would be imposed.
Determining “unlawful presence”
A Trump Administration policy that became effective on Aug. 9, 2018, instructed immigration examiners to find a student was unlawfully present if they violated any of the rules of student visas. The unlawful presence then was determined to begin retroactively at the date of the first violation. To be clear, the regulations for student visas are extensive and technical.
Under the Administration’s August 2018 policy, for the first time it became possible for a student to violate status, to be found to have been unlawfully present for more than a year, and then to be subject to the 10-year bar retroactively without having any idea what they may have done wrong. Under the previous policy, the student could not be subject to the bar until told in clear terms by the government that the period of unlawful presence had started, and the student would have been allowed time to correct the problem before becoming subject to the bar.
Why is the new policy critical?
The new policy is critical because a foreign national cannot extend or change the terms of their temporary stay if they have been found to have violated their status. The only option would be to depart the United States, apply for a new visa, and return in the new or extended status. If the student is subject to the bar, they would be unable to return.
In a lawsuit brought by two former students, the American Federation of Teachers, and several colleges and universities, the Federal District Judge found that the plaintiffs were likely to succeed on the merits of their challenge to this new policy. The Court therefore enjoined the implementation of this new policy, prohibiting USCIS from applying the policy to any foreign student in the country until the case can be decided on its merits.
To issue this preliminary injunction, the Court held that it was likely the plaintiffs would succeed on the merits of their claim that the policy violated the Administrative Procedure Act. The first basis for this decision was the plaintiff’s challenge that the policy was in fact a change in policy and required formal notice in the Federal Register, followed by an opportunity for the public to provide comments, which then must be considered by the agency. USCIS did not follow this required procedure, but instead argued that the memo was not a change in policy, but a change in the interpretation of the statute. The Court, however, read the policy memo, which specifically stated that it was a change in policy, at face value, and held that it was likely the plaintiffs would successfully argue that the policy change required formal “notice and comment.”
The Court also found that it was likely the plaintiffs would succeed on their second argument, that the policy conflicted with the statute that created the concept of unlawful presence. For this argument, the plaintiffs suggested that there was a difference between a violation of status and unlawful presence. Congress used different words to describe these two concepts, and while they are related, the words are different. The plaintiffs argued that if Congress had intended them to be the same concepts, they would have not have used different words. Thus, the Court agreed that if they were different concepts, a policy that treated the different words as if they were the same would not be valid.
What happens next?
Thus, the Court imposed a national injunction to prevent USCIS from applying this policy to any foreign student found to have violated status. There will be further proceedings, and a decision on the merits is likely to be issued later this summer. While the final result is uncertain, the government bears a heavy burden to demonstrate why the preliminary decision is wrong. At a minimum, until a final decision is made on the merits of this litigation, USCIS cannot retroactively find any student to have accrued unlawful presence retroactively.