• Attorney Prescott

Federal Court issues Injunction blocking Unlawful Presence Memo of August 2018

In January of this year I previously wrote an article about the potential consequences of the August 2018 Unlawful Presence Memo.

For the full article see the following link:

This memo effectively changed the way that USCIS would calculate how a person accrued unlawful presence following a status violation. The effect of the memo was to calculate unlawful presence from the date of the violation rather than the date of the determination by USCIS. This meant that an individual who unknowingly violated their status would accrue unlawful presence from the date of the violation, even if they were not made aware of the violation by USCIS until many months/years later. This retroactive application of unlawful presence had potentially harsh consequences, some candidates finding out that they had accrued unlawful presence for more than 180 days and would be subject to a 3- year bar upon departing the U.S.

After this memorandum was issued, several colleges filed a lawsuit, against the Department of Homeland Security, in October 2018, stating that the memo was unlawful as it did not go through the regulatory process. The colleges also filed for a preliminary injunction requesting that the application of the memo be blocked until the pending litigation was resolved.

On May 3, 2019, a Federal District Court Judge granted the injunction, essentially blocking the application of the unlawful presence memo until the litigation is resolved. This means that unlawful presence will be calculated in the same way that it had been prior to the issuance of the August 2018 memo i.e. unlawful presence would only accrue the day after the decision regarding the status violation was made. It will no longer be retroactive.

This is good news for students, because USCIS can no longer enforce the unlawful presence memo, at least for the time being.

May 8, 2019


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