Earlier this month, a U.S. Federal Court judge issued an injunction against the United States Citizenship and Immigration Services (USCIS) blocking an August 9, 2018 policy memorandum on accrual of unlawful presence of F, M and J nonimmigrant visa holders. You can read more about the policy memorandum at:

Final Guidelines on Unlawful Presence for Students and Exchange Visitors

In October 2018, several U.S. higher educational institutions sued the U.S. Department of Homeland Security (the department that oversees USCIS) arguing that the new policy memo providing guidance to determine unlawful presence was unlawful. The lawsuit contained the following allegations:

  1. The policy memo was issued without going through the required regulatory process;
  2. The policy change was arbitrary and capricious;
  3. The policy change conflict with the 1996 Immigration and Nationality Act which created the concept of unlawful presence;
  4. The policy change violated the right to Due-Process under the 5th Amendment of the United States Constitution.

As a result of the judge’s ruling, USCIS is enjoined from enforcing the August 2018 policy memorandum and must follow the previous rules promulgated in 1996 which entails that unlawful presence commences the day after a decision is made.


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