On February 6, 2020, a federal district court judge issued a permanent injunction that prohibits the United States Citizenship and Immigration Services (USCIS) from implementing a new policy that made it so F, J, and M nonimmigrant students and exchange visitors and their dependents would automatically begin to accrue unlawful presence as soon as they violate the terms of their nonimmigrant status.

Previous to this new policy, F, J, and M nonimmigrants holding an I-94 showing a “duration of status” (D/S) admission would not accrue unlawful presence unless and until there was a specific finding of a status violation by USCIS or immigration judge. The new policy would have had a retroactive effect so that if an F, J, or M nonimmigrant inadvertently violated his or her status, they would trigger the accrual of unlawful presence in the U.S. without realizing it. The impact of the policy would have been significant. If a foreign national is 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 U.S. and would not have been eligible to apply for a visa, admission, or adjustment of status to permanent resident unless they were granted a waiver of inadmissibility or another form of relief.

Last year, several universities and two individuals brought forth a legal challenge to the new USCIS policy, arguing that the policy is contrary to statutory unlawful presence provisions, is arbitrary and capricious, and violates the Administrative Procedure Act (APA) and the U.S. Constitution’s Due Process clause. While the court was hearing the lawsuit, Guilford College et al v. Wolf et al, they issued a temporary, nationwide injunction. On February 6, 2020, federal district court judge Loretta C. Biggs sided with the plaintiffs and invalidated the policy as a matter of law.

Until further notice, F, J, and M nonimmigrants can continue to rely on prior agency policy, whereby they only can accrue unlawful presence after a definitive and affirmative determination from USCIS or an immigration judge. However, the government is expected to appeal the decision.

On a related note, the United States Immigration and Customs Enforcement (ICE) is planning this month to propose regulation that would change the period of authorized stay for certain F-1 and other nonimmigrants from D/S to a specified end date.