On May 3, the Honorable Loretta C. Biggs of the U.S. District Court for the Middle District of North Carolina issued a decision in the F, J and M unlawful presence litigation. Her decision rejected the government's Motion to Dismiss the case and granted the plaintiffs' Motion for Preliminary Injunction.
The Judge issued a nationwide preliminary injunction, effective immediately, enjoining USCIS's memo titled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," originally issued on May 10, 2018, and updated on August 9, 2018, until further order of the court.
The August 9, 2018 memo, which changed 21 years of USCIS policy regarding unlawful presence of foreign nationals in D/S status, penalized international students for overstaying or violating the terms of their visas, even accidently. (Guilford College v. McAleenan, 5/3/19)
Because the Judge has already considered the legal challenges that are the basis for plaintiffs' Motion for Summary Judgment in determining the plaintiffs' "likelihood of success," it may be reasonable to expect a final decision from the court in June 2019 or shortly thereafter.
Under the USCIS' long standing policy, foreign nationals in "D/S" (duration of status) could not incur unlawful presence until a specific date - the date on which they were
notified that the government believes they violated status. This gave F, J, and M foreign nationals 180 days to depart the U.S. without incurring a 3-year bar. The legacy INS, and the Department of State, agreed to this interpretation, embodied it in multiple memoranda and followed it uniformly for 21 years.
The August 9, 2018 Policy Memorandum permitted the USCIS to determine that a student had violoated his/her status at some time in the past and issue a finding that the student has been violating status retroactively, often without any knowledge of the violation, at which time the student may already have been in violation of status for over 6 months and subject to the 3-year bar, or may already have been in violation of status for over 1 year and subject to a 10-year bar from the U.S.