Unlawful Presence Litigation

On August 9, 2018 USCIS issued an updated policy memorandum that fundamentally and radically altered when F-1, J-1, and M-1 visa holders accrue unlawful presence, e.g. accrual would begin retroactively on the date a visa holder engaged in prohibited conduct instead of when they were adjudicated as “out of status.” Accrual of unlawful presence directly affects whether collateral inadmissibility immigration bars (e.g. the three, ten, and permanent bars) potentially affect and penalize visa holders who seek admission to the United States prospectively.

This subregulatory change made it substantially more likely that the accrual of unlawful presence would more easily occur as a result of administrative, unintentional, or innocent errors and lead to significant, unforeseen consequences, including being barred from the United States. In response, higher education institutions, including members of the Presidents’ Alliance filed a challenge against the policy. The Presidents’ Alliance also coordinated an amicus brief signed by over 60 institutions of higher education in support of the legal challenge. On February 6, 2020, a federal district court issued summary judgement permanently enjoining the new policy, rendering permanent a preliminary injunction issued in May of 2019. Below, we provide links to these and other related documents.

Last updated February 6, 2020