It is unclear how the ruling might affect those who may have already been found to be unlawfully present under the new policy. If such a "hit" appears when the student or exchange visitor applies for a benefit, the consular officer or immigration officer must resolve that hit before granting the benefit.
USCIS issued a policy memo on August 9, 2018, regarding “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,”. The plaintiffs asked the court to declare unlawful and vacate the August 2018 policy memo, and to enjoin the enforcement or application of the memo. Citizenship and Immigration Services’ (“USCIS”) issuance and application of the August 9, 2018 Policy Memorandum, PM-602-1060.1, titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” (the “August 2018 Policy Memorandum” or the “Policy Memorandum”). They cannot use this policy now until the court case reaches the result. The government is expected to appeal today’s decision.We appreciate your interest in our firm. The order means that the agency must revert to its prior rules relating to unlawful presence while a lawsuit challenging the legality of the new policy continues. "After the memo, a simple violation of status—knowing or unknowing—without any formal finding could start the unlawful presence clock. I mostly focus on employment-based petitions for specialty occupation workers and employment-based immigration filing related to Advanced Degree and Professional categories.
The plaintiffs asked the court to declare unlawful and vacate the August 2018 policy memo, and to enjoin the enforcement or application of the memo.The language of the guidance, combined with the August 9, 2018 effective date, establishes the following rules and principles.Advisers should still counsel students with questions about the injunction and applicability to their individual situation, to consult an experienced immigration lawyer.Although a departure from the United States stops and resets the unlawful presence clock, a departure also triggers the penalty provision (3 or 10-year bar) under INA 212(a)(9)(B), if more than 180 days of unlawful presence had been accumulated during that stay before the departure. Guilford College v. USCIS, May 3, 2019 "Plaintiffs’ lawsuit relates to the U.S. Citizenship & Immigration Services (USCIS) from implementing a policy under which F, J and M nonimmigrant students and exchange visitors and their dependents automatically begin to accrue unlawful presence if they violate the terms of their nonimmigrant status.The impact of the revised policy is significant because a foreign national who has been unlawfully present for more than 180 days or one year or more is subject to a three-year or ten-year bar on reentering the United States and will not be eligible to apply for a visa, admission or adjustment of status to permanent resident unless they are granted a waiver of inadmissibility or other form of relief.