A Federal district court judge ordered a nationwide temporary injunction, thereby saving many foreign students on J1, M1, and F1 visas from being unlawfully present in the US.  The court stopped the Trump Administration from penalizing students who may be unaware their immigration status is a problem.

On August 9, 2018, the Trump Administration Department of Justice implemented a memorandum regarding Accrual of Unlawful Presence for F1, J1, and M1 student statuses.  The announcement was a major change in policy that would have a dramatic effect on foreign students in the U.S.

Out of Status or Working

This new policy declared that foreign students who are not in school, or who work without proper authorization, are unlawfully present in the US.  A problem is that students sometimes cannot attend classes or the units fall below a minimum due to class reshuffling or for any other reasons. For example, a sick student who is out of status can normally apply to the school for reinstatement.  Likewise, foreign students who perform internships can work.  However, it is not always clear to a student when work is not permitted. Finally, it can be difficult for students to understand when exactly they became unlawfully present so they understand when penalties begin to accrue against them.  So, departing the U.S. while unlawfully present can result in a 3 or 10 year bar from the U.S.

Duration of Status

A CBP border agent designates duration of status (“D/S”) on the I-94 card.  Students allowed into the U.S. for D/S were previously not penalized for going out of status.  Students with D/S would simply go out of status.  They would need to find a legitimate way of regaining status or depart the U.S. without fear or reprisal.

Unlawful Presence

The new policy put the burden on students with D/S to investigate and ensure they remain in lawful status or they would be declared “unlawfully present” in the U.S.  Penalties take effect for those in the US unlawfully present.  Under this new policy, a student who is out of status is essentially the same as someone who hopped the fence and was in the U.S. illegally without any permission at all.

The nationwide temporary injunction, effective immediately, enjoins government from following the USCIS memo.  It prevents the US government from penalizing international students for overstaying or violating the terms of their visas, even accidently. (Guilford College v. McAleenan, 5/3/19)