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Federal District Judge Issues Nationwide Preliminary Injunction Blocking Implementation of USCIS Unlawful Presence Memo for Fs, Js, and Ms

On Friday a Federal Judge issued a nationwide preliminary injunction enjoining USCIS from implementing its August 2018 Unlawful Presence Memo affecting F, J, and M students and exchange visitors. The memo implemented a policy where F, J, and M nonimmigrants, and their dependents, would begin to accrue unlawful presence from the moment they violated the terms of their nonimmigrant status. The memo’s effects were drastic, far-reaching, and unduly cruel to these individuals, many of whom would not even be aware that they had violated the terms of their nonimmigrant status, and would unexpectedly find themselves subject to the 3 or 10 year bars from entering the United States. It is a rare and much welcome victory to the immigration community to see this memo’s heavy handed approach to unlawful presence being enjoined at the federal district level.


USCIS must now revert to its prior guidance related to calculating and determining accrual of unlawful presence, at least while the lawsuit challenging its legality undergoes adjudication. However, USCIS is expected to appeal Friday’s decision. The full text of the decision can be found here.


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