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The U.S. District Court for the Middle District of North Carolina has issued a nationwide preliminary injunction halting the enforcement of the Trump administration’s August 2018 policy memorandum that changed when “unlawful presence” accrues for foreign students and exchange visitors.

The Unlawful Presence Policy

Unlawful presence is defined as presence in the United States outside the period of authorized stay. Prior to the Trump administration’s August 2018 policy memorandum, unlawful presence for international students and scholars in F-1 or J-1 status was triggered upon a formal finding by U.S. Citizenship and Immigration Services (USCIS) or an immigration judge that a status violation had occurred. Under the new policy, however, unlawful presence begins to accrue automatically upon the occurrence of a status violation, or on August 9, 2018 (for violations that occurred before then). Because there is no notice or formal adjudication requirement, individuals who unknowingly violate their status may not realize that they have begun to accrue unlawful presence until they apply for a visa or change of status.

The accrual of unlawful presence can have significant consequences. Individuals who accrue 180 days of unlawful presence may be subject to a three-year bar to admission into the United States. Those unlawfully present for a year or more may trigger a 10-year bar to admission. Individuals who have triggered either the 3- or 10-year bars are generally not eligible to apply for a visa or lawful permanent residency (a green card).

Impact of the Injunction

The preliminary injunction temporarily prevents USCIS from enforcing the August 2018 policy memorandum. While the injunction is in effect, foreign students and exchange visitors will not begin to accrue unlawful presence unless they have received a formal finding of a status violation by USCIS or are ordered to be excluded, removed, or deported by an immigration judge.

Regardless of which policy is in effect, foreign students and exchange visitors may want to consult with their international student advisors prior to accepting summer internships or employment.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the unlawful presence accrual policy litigation and will post updates on our immigration blog as additional information becomes available.

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