F-1 Student Plaintiffs in District Court Case Allowed to Stay in U.S.

The federal judge presiding over a court case that challenges United Sates Citizenship and Immigration Services’ (USCIS) policy regarding unlawful presence calculations for student visa holders, has issued an injunction permitting the two student plaintiffs to remain in the U.S. so that they can continue to participate in the case.

The case, Guilford College et al. v. Nielsen et al., challenges USICS’ May 2018 policy that changes how unlawful presence is calculated for foreign citizens studying in the U.S. under F student, J exchange visitor, or M vocational student status. Under the new policy, USCIS considers unlawful presence accrual to begin from the date in which a student initially falls out of status, rather than from the date when USCIS formally concludes that there has been a violation and notifies the student.

According to the legal news service Law 360, the policy “could carry heavy penalties for students who inadvertently or unknowingly accrue unlawful status including re-entry bars after 180 days of unlawful presence that would prevent the students from returning to the U.S. again for years.”

The student plaintiffs in the case would have likely faced this bar if they had been forced to leave the U.S. They entered the U.S. in F-1 status and subsequently joined the U.S. military through a program meant to bolster the military’s personnel in certain skill areas, including foreign languages and medical expertise. But the students have not begun training due to delays in the security clearance process. Law 360 reports that their visas will expire in February, leaving them in violation of their status and vulnerable to becoming unlawfully present under the new policy. According to Loretta C. Biggs, the presiding judge, now the student plaintiffs can lawfully remain in the U.S., and “fully participate in [the] case.”

Since Guilford College et al. v. Nielsen et al. was filed in October 2018, 60 colleges and universities including New York University, Duke University, and Stanford University have joined in to challenge the USICS policy.

Please contact immigrationinfo@cornerlaw.com for more information regarding F student visas, J exchange visitor visas, and the accrual of unlawful presence.

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