As many of you know last year news, USCIS published F1 Unlawful Presence Memo in 2018, with effective date of August 9th, 2018 that changed the way they calculate the unlawful presence. There was a lawsuit filed on this memo by a group of institutions late last year. This was in court for some time and on May 3rd, they court gave a preliminary injunction that blocks the implementation of this August 9 unlawful presence memo. The court gave a 29-page document for this order, we will look at details of that order on why injunction is granted and what’s next, including some background for those of you who are not familiar.
Background : What is USCIS August 9th F1 Unlawful Presence Memo ?
USCIS published a memo that is targeted towards F, J and M status holders that they say will prevent overstays of individuals in F1, J or M visa status. The key topic in the memo was the way USCIS calculates unlawful presence. As per the new “Unlawful Presence memo from August 9th, 2018”: F1, J and M visa students accrue ( accumulate/ add) unlawful presence from the day they have engaged in the unauthorised activity, which caused their F1 status violation. Basically, what it means is that, USCIS can add up all the previous days, before the decision, that you were working/ or doing some other activity in unauthorised way to your unlawful presence days in US.
How does New F1 Unlawful Presence Memo really Impact – Example : This is critical for scenarios like Day 1 CPT students, someone waiting for other decisions, or some violations during the F1 status, which will have adverse impact later during H1B Visa or Green Card process, where if USCIS believes you violated status during your student days, your unlawful presence would be calculated retroactively ( means from previous dates of unlawful activity, instead of from the day of decision) from August 9th, 2018. If you exceed 180 days of unlawful presence, then you are subject to 3 year bar meaning that you cannot enter US in any visa and subject to 10 year bar, if your unlawful presence is 365 days.
What is the F1 Unlawful Presence Lawsuit? What is the high level History ?
A lawsuit was filed in October 2018 against DHS in District Court ( for Middle district of North Carolina) by Guilford College, American Federation of Teachers, and few more colleges asking to block the memo based on their argument. As part of the initial judgment order, in Jan 2019, there was a temporary order preventing the memo issued with applicability to only two individuals ( Jia Ye, Sen Li – who were listed as the people impacted/injured). There was oral argument hearing done in April and finally on May 3rd, 2019, the court blocked the F1 Unlawful presence memo with a preliminary nationwide injunction ( order that stops from doing certain thing) until the lawsuit is pending or fully resolved. What it means is that USCIS / DHS cannot enforce the Unlawful presence memo until the resolution is done for the lawsuit in court.
Why did District Court grant Preliminary Injunction ? What are the argument points ?
Lately, I have been reading too many H4 EAD Lawsuit court documents related to H4 EAD Lawsuit. Compared to them, the current F1 unlawful presence court document of 29 pages was an easy read…Anyways, the Colleges group argues based below key points.
- The F1 unlawful presence memo was issued without fully complying to rulemaking process of the APA ( Administrative Procedure Act )
- The unlawful presence memo text conflicts with the statutory text of the INA ( Immigration and Nationality Act)
DHS argues that the case should be dismissed based on below key points
- Lack of jurisdiction, standing in case and ripeness (ready for court litigation) .
Key Argument Points from the F1 Unlawful Presence Memo Lawsuit Court Documents
- Standing in Case – Right to Sue : Court states two students Ye and Li ( who were recruited by US Army) have right to sue as these students are impacted based on the memo. They have been asked not to leave by US Army until they get orders. It has been past 180 days for both of them and based on this unlawful presence memo, they will be barred for 3 years to enter US. DHS argues that USCIS has not sent them anything official telling they are out of status, so they cannot sue. But, as per Supreme Court, there is no need for someone to expose themselves to risk/injury/ impact before they challenge such threat. In this case, Ye and Li are subject to the risk as they are no longer enrolled in course of study and would be potentially subject to unlawful presence. So, the court concludes that the Colleges Group and two students have standing to contest in court. There are similar couple of situations like these that support that the case has standing. Court ultimately concludes based on these situations that the individuals & colleges group has standing to sue.
- Preliminary Injunction ( Order that prevents carrying out existing memo) : Courts usually look at the merits of a case and they will only give preliminary injunction, if they believe that the group of people/ organizations challenging an existing rule/memo will very likely succeed and also if there is no such injunction given, there will be loss/ irreparable damage for the parties involved and the injunction is in the public interest.
Argument Points in Favor of the Colleges Group for Injunction :
The court believes that the Colleges group will very likely succeed in their
case, based on the points below.
- The F1 unlawful presence memo is invalid because DHS did not follow proper rulemaking process of APA and comment process. Also, DHS did not publish the rule in federal register, the comments were not fully addressed properly.
- The ‘unlawful presence’ text in the memo conflicts with the INA text. DHS created confusion with ‘Unlawful Presence’ vs. ‘Unlawful Status’.
- If the individuals impacted with the memo, were to leave US, they will not be able to challenge the case in court as they will not be issued visa to re-enter under the current memo due to the bar… and courts lack jurisdiction to review US Consular officer’s decision to issue or deny visa. So, this injury/ impact is irreparable harm.
Based on the above points, the court believes that the college group could succeed and there is need to issue a nationwide preliminary injunction to stop the irreparable damage for the impacted parties as requested by the colleges group, until the litigation is fully resolved. You can check out the full court documents below for your review.
What’s next steps in the F1 Unlawful Presence Memo Lawsuit ?
The court has ordered that the parties involved in the case should engage in a expedited summary judgment by end of May. Below are the dates for the next steps. The parties have to submit everything by May 30th.
What do you think of the Lawsuit? Your thoughts ?