On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states:
"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."
The court determined that the government had failed to comply with the Administrative Procedures Act when it issued the 2018 policy memo, and thus the rule had to be set aside. More importantly, however, the court held that, “because the unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the [Immigration and Nationality Act].”
The 2018 policy memo was already subject to a preliminary injunction that temporarily halted enforcement while the underlying case was resolved. As a consequence, since May 2019, USCIS has been applying the prior policy guidance, under which individuals admitted for duration of status (“D/S”) do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit. The February 6, 2020 decision and order means that the 2009 policy will continue in place. DHS may appeal the decision.
Students and scholars with questions about violations of status, unlawful presence, the injunction and their individual situation, should consult an experienced immigration lawyer.