U.S. District Court Judge Loretta Biggs issued a permanent injunction in Guilford College et al v. Nielsen et al, ending the Trump Administration’s “unlawful presence” policy. Read Judge Biggs’ ruling HERE.
This decision is a huge rebuke to the Administration’s continued efforts to restrict legal immigration avenues. The lawsuit was filed by four colleges in October 2018 to challenge the implementation of the unlawful presence policy on the basis that the government did not engage in the required notice and comment rulemaking process, that the policy is arbitrary and capricious, and that it violates statutory text and due process.
The Trump Administration’s policy on unlawful presence meant that tens of thousands of international students and scholars on F, J, and M visas could technically accrue enough time out of lawful status to earn a three- or ten-year reentry bar, without even being aware of the alleged violation and with no time to remedy the situation. The net effect – as the Administration stated is the purpose of the new policy – is to render hundreds of thousands of individuals in the years ahead subject to three and ten-year reentry bars.
This decision by the court upholds decades of precedence for how unlawful presence is counted and enforced for international students. It also reinforces the necessity for the Trump Administration to utilize the proper rulemaking and comment periods before they attempt to change longstanding immigration policy. All in all, this ruling is a win for our higher education community, our innovation ecosystem, and our country – all of which benefit hugely from the contributions of international students and scholars.
More background on unlawful presence and Guilford College v. et al v. Nielsen et al is below. Please let us know if you are interested in speaking to individuals impacted by this ruling.
THE TRUMP ADMINISTRATION’S UNDERHANDED ATTEMPT TO IMPOSE DRASTICALLY EXPANDED REENTRY BARS AGAINST INTERNATIONAL STUDENTS, MILITARY SERVICEMEMBERS WITH VITAL SKILLS
WHAT IS UNLAWFUL PRESENCE?
In 1996, Congress adopted the concept of “unlawful presence.” If an immigrant is unlawfully present in the United States for more than 180 days, he or she is subject to a subsequent three-year reentry bar to the United States. After unlawful presence reaches 365 days, the bar extends to ten years. When individuals on F, J, and M visas (nonimmigrant visas for students, scholars, or those receiving vocational or technical training) enter the United States, they may remain for their “duration of status”; they are not given an exact date for when they must leave.
HOW DOES UNLAWFUL PRESENCE WORK?
For more than two decades, the “unlawful presence” clock has started on the date that the government determines an individual is out-of-status through “a formal finding of a violation of status or if they were ordered to be removed, deported or excluded.” By providing individuals this critical notice, the prior policy affords individuals an opportunity to regain their status or to leave the country in a timely fashion before they accrue more than 180 or 365 days out-of-status.
WHAT DID THE TRUMP ADMINISTRATION ATTEMPT TO CHANGE?
On August 8, 2018, U.S. Citizenship and Immigration Services (USCIS) finalized a new policy that fundamentally changed how unlawful presence for F, M, and J visa holders was determined. Instead of the clock starting once a formal finding had been made (and the individual became aware of the problem), USCIS intended to backdate the unlawful presence clock to when it believes the underlying facts gave rise to an individual being out-of-status. This backdating would have had the potential of subjecting unknowing F, J, and M nonimmigrants to being barred from reentering the United States for three or ten years, which in some cases could prevent them from finishing their degrees or starting jobs here after graduating.
WHAT WAS THE PROJECTED IMPACT OF THIS CHANGE?
This policy change indicated that tens of thousands of immigrants could and would accrue enough time out-of-status to earn three- or ten-year reentry bars without even having been aware of the alleged violation, and with no time to remedy the situation. The net effect – and which the Administration stated would have been the purpose of the new policy – was to have rendered hundreds of thousands of individuals in the years ahead subject to three- and ten-year reentry bars.
WHO ELSE WOULD HAVE BEEN IMPACTED ALONG WITH STUDENTS AND VISITING SCHOLARS?
Military servicemembers with vital skills who are enrolled in the Military Accessions Vital to the National Interest (MAVNI) program were also at great risk due to the proposed change. The MAVNI program “allows certain non-citizens who are legally present in the United States to join the U.S. military and apply immediately for U.S. citizenship… without first obtaining lawful permanent residence. The program is only available to [individuals] holding critical skills—physicians, nurses and experts in certain languages with associated cultural backgrounds.” Because the proposed change impacts F and M student visa holders and an F or M visa is required to apply to the MAVNI program, these military servicemembers were at risk of losing the possibility of becoming citizens as well as the opportunity to contribute their vital skills to this country. In fact, they could have been forced to leave the country contrary to instructions from the U.S. military, setting them up for an impossible choice. If qualified servicemembers left the country in order to avoid becoming subject to irrevocable three- or ten-year reentry bars, it would end the processing of their security clearances and make them unavailable for basic training, as required under the MAVNI program. However, under the Trump Administration’s proposed unlawful presence policy, if these same servicemembers had remained, they would have continued to accrue unlawful presence under the new policy and would then be subject to reentry bars – meaning they could neither stay nor leave without serious personal and professional consequences .
WHO CHALLENGED THIS NEW POLICY IN COURT, AND WHY?
A lawsuit filed in October 2018 challenged the implementation of the unlawful presence policy on the basis that the government did not engage in the required notice and comment rulemaking process, that the policy is arbitrary and capricious, and that it violates statutory text and due process.
The plaintiffs in this lawsuit include Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, Haverford College, The American Federal of Teachers, and two individuals enrolled in the MAVNI Program. There are also more than 60 colleges and universities that demonstrated their support for the lawsuit by joining the amicus brief filed this past December.
WHAT IS THE STATUS OF GUILFORD COLLEGE ET AL V. NIELSEN ET AL?
In January 2019, Judge Biggs of the Middle District of North Carolina granted a temporary restraining order barring application of the unlawful presence policy change to the individual named plaintiffs. This order only provided immediate relief to the named MAVNI plaintiffs who faced imminent harm. It did not provide relief for other MAVNI enrollees impacted by unlawful presence, nor any other international students or scholars.
On May 3, 2019, Judge Biggs issued a nationwide preliminary injunction barring enforcement of the new policy in all applications. Biggs found that the plaintiffs were likely to succeed on the merits regarding their claims that the new policy was promulgated in violation of the Administrative Procedure Act (APA) and also conflicts with the Immigration and Nationality Act (INA).
On February 6, 2020 Judge Biggs granted summary judgement in Guilford College et al v. Nielsen et al, issuing a permanent nationwide injunction. The Department of Homeland Security is now permanently enjoined from applying the August 2018 unlawful presence memo. Judge Biggs’ ruling finds the Trump Administration’s attempt to redefine unlawful presence to be unlawful both based on its merits and in the manner in which it was implemented. As USCIS failed to adhere to the proper notice and comment process for administrative rulemaking, and because the new interpretation is in conflict with the statutory language of the Immigration and National Act (INA), the proposed rule must be set aside. The government now has 60 days to file a notice of appeal if they so choose, but as it stands, this decision from the Middle District Court of North Carolina is a strong rebuke of the Administration’s attempt to skirt the proper notice and comment rulemaking process and to redefine immigration law.