Important News Regarding “Unlawful Presence” for Students and Exchange Visitors

Published: 02/14/2020


Last week, on February 6, 2020, a federal judge in the Middle District of North Carolina issued a decision that will affect hundreds of thousands of individuals in the United States who currently have or previously had student or exchange visitor (F, J, and M) visas. Judge Loretta C. Biggs’ decision in the case (Guilford College et al v. Chad Wolf et al) permanently ordered the U.S. Citizenship and Immigration Services (“USCIS”) not to apply its new rule, first introduced in August 2018, regarding the calculation of “unlawful presence” for students and exchange visitors.

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Normally, students and exchange visitors are not admitted into the United States for a specific period of time with an expiration date. Instead, students and exchange visitors are admitted for “duration of status” or “D/S,” which means that they are in lawful status as long as they are pursuing a course of study or practical training in the United States. The student does not begin to have an “unlawful presence” until an immigration judge or USCIS makes a formal decision that the student violated her student status. Whether or not a student begins to have an “unlawful presence” is important because the student may be barred from returning to the United States for either 3 or 10 years if she has more than 180 days of “unlawful presence” and then departs the United States.

In August 2018, USCIS announced a new rule that students and exchange visitors would begin accruing “unlawful presence” as soon as they violated their visas in any way, without the need for a formal decision by an immigration judge or USCIS that the violated their status. Immediately, several schools and nonprofit organizations filed a lawsuit USCIS to stop the new rule. As a result, the federal court in North Carolina ordered USCIS not to implement the new rule until the court could make a decision in the case. Now, the judge has made her order permanent, so USCIS cannot use its August 2018 rule and must continue to apply the existing rule for “unlawful presence” for students and exchange visitors. However, it is likely that USCIS will appeal the judge’s decision, so please look out for updates.


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