On February 6, 2020, universities and international students prevailed in a legal battle when U.S. District Judge Loretta C. Biggs granted the motion of universities to block a memo issued by the U.S. Citizenship and Immigration Services.
The memo issued by USCIS on May 10, 2018, and revised August 9, 2018, titled “Accrual of Unlawful Presence and F, J and M Nonimmigrants,” (PM-602-1060 and PM-602-1060.1) presented far-reaching implications that could have barred international students from the United States. On May 3, 2019, The U.S. District Court for the Middle District of North Carolina issued a preliminary nationwide injunction in response to a lawsuit from universities led by Guilford College.
The primary difference between the new 2018 policy and the 1997 policy was the rule, according to which “unlawful presence” begins to accrue at the time of the violation instead of the moment of the formal finding of that violation. Being deemed unlawfully present for long periods of time carries stiff consequences, i.e., being barred from the United States for 3 or 10 years. Therefore, per the new policy, an individual could accrue unlawful presence but be unaware, and as a result, being left with no recourse of action.
In the Guilford College case, Judge Biggs explains how the USCIS memo on unlawful presence violated the Administrative Procedure Act (APA).
“Under the APA, courts must ‘hold unlawful and set aside’ those agency actions that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ . . . ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right’. . . or undertaken ‘without observance of procedure required by law.’”
Biggs continued, “Review under this standard is highly deferential, with a presumption in favor of finding the agency action valid. Nevertheless, the standard is not meant to ‘reduce judicial review to a ‘rubber-stamp’ of agency action.’”
USCIS claimed the memo was a “reasonable interpretive rule” and therefore did not need to observe notice-and-comment. However, Judge Biggs found that the “Accrual of Unlawful Presence and F, J and M Nonimmigrants” was not merely an interpretive rule but effectively a legislative rule.
“The [USCIS] memo goes on to explain that, in pursuit of those goals [reducing overstays and improving implementation of unlawful presence], ‘USCIS is now changing its policy on how to calculate unlawful presence.’ . . . This language, which evinces a desire to achieve a substantive policy outcome, strongly suggests ‘that more is involved than mere ‘interpretation.’ Simply put, the August 2018 PM [Policy Memorandum] ‘endeavor[s] to implement the [INA],’ rather than merely interpret it, which is ‘the effect of a legislative rule.’” (Emphasis added.)
Judge Biggs ruling in favor of international students and universities means that the Department of Homeland Security is obligated to notify individuals of an alleged status violation and allow them to correct the issue or timely depart the United States to avoid a 3-or 10-year reentry bar.
While international students and universities won, the battle is not over. USCIS has plans for another rule proposal called “Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions,” tentatively planned for September 2020. If USCIS follows through, the new rule would have to adhere to the Administrative Procedure Act to avoid being thrown out in court.