On February 6, a federal judge in North Carolina issued a permanent nationwide injunction on a rule that sought to change the way the Department of Homeland Security (DHS) calculated “unlawful presence” for international students (F-1, M-1) or exchange visitors (J-1). The new rule would have triggered the accrual of unlawful presence from the moment a violation of status occurs, even if the visa-holder is not aware of said violation. Under the current rule, however, an international student or exchange visitor cannot begin to accrue unlawful presence until there is a formal finding of unlawful presence by an immigration judge or DHS.  

         Unlawful presence can start accruing when a foreign national student violates the terms of his or her status, such as working for too many hours or weeks at a campus job, taking a course load without the required number of credits or failing to update an address after moving. Accumulation of unlawful presence in the U.S. can have serious consequences, including a bar to re-entry into the US for three years if more than 180 days of unlawful presence has been accrued, or a ten-year bar if more than one year of unlawful presence has been accrued. 

         DHS has defended the need for this new rule in order to “identify and calculate the number of nonimmigrants who have failed to maintain status,” as described in this report. Because foreign nationals on F, J, and M nonimmigrant visas are authorized to remain in the US for the duration of their student status (“D/S”) rather than a fixed time period, it’s harder to calculate unlawful presence should they fall out of status.  This policy change was announced by DHS in August 2018, though enforcement of the new rule was temporarily on hold for litigation to proceed. 

         The federal judge in this case, Judge Biggs, found that the new rule is unlawful, and permanently barred its enforcement.  International students therefore can continue to rely on the unlawful presence memo issued on May 9, 2009, which does not allow for accumulation of unlawful presence violations without a formal finding of such violations by an immigration judge or DHS.  

This alert is for informational purposes only. Please contact us if you would like to discuss this development further.