On August 3, 2020, the Fourth Circuit Court of Appeals ended litigation around the U.S. Department of Homeland Security (DHS)’s 2018 unlawful presence (ULP) policy for foreign students by dismissing the government’s appeal of a lower court’s decision to preliminary enjoin the administration’s unlawful presence policy.
Previously, U.S. District Judge Loretta Biggs issued a decision permanently enjoining the new unlawful presence policy, as laid out in the policy memorandum entitled Accrual of Unlawful Presence and F, J, and M Nonimmigrants. DHS initially appealed the ruling, only to reverse course and ask for the case to be dismissed last week.
The dismissal makes the District Court’s February 6, 2020 decision final. That order stated:
The United States Citizenship and Immigration Services’ August 9, 2018 memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications.
Despite the return to existing rules for foreign students and exchange visitors, a violation of nonimmigrant status still puts an individual "out of status" and makes them subject to removal from the United States, even though "unlawful presence" may not have started being counted. Foreign students or exchange visitors should consult an experienced immigration lawyer if they have questions about or need strategies to deal with unlawful presence and status violations in their individual situation.
In addition, DHS announced its intention to issue a proposed rule titled "Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions," which appears in the Spring 2020 Regulatory Agenda with a target date of 03/00/2021. DHS/USCIS, RIN 1615-AC46. DHS/USCIS had published this item for the first time in the Fall 2019 regulatory agenda, and it appears related to the agency's unsuccessful attempt to revise its unlawful presence policy via policy memo, which ran afoul of Administrative Procedure Act requirements for public notice and comment.