On February 6, 2020, a federal judge permanently blocked a DHS policy shift regarding persons who entered the United States on student visas and who later fell out of valid status.
Many noncitizens who enter the United States on certain nonimmigrant visas – including F, J, and M student visas – are permitted to remain in the United States for the time during which they are pursuing their educations at accredited schools or engaging in authorized training after the completion of their studies. When persons with these visas are admitted to the United States, they generally are admitted not for a specific period of time, but rather for the “duration of status.” When DHS issues an I-94 to these persons, they generally state that they are permitted to remain through “D/S,” which stands for “duration of status.”
Noncitizens who accumulate “unlawful presence” in the United States suffer certain penalties when they depart the United States: They are prohibited from returning to the United States for either 3 or 10 years, depending on the length of their “unlawful presence” in the United States before they departed.
For more than 20 years, DHS has maintained that persons with F, M, or J visas who fall out of valid status – who stop attending school or who stop authorized training – do not begin to accumulate unlawful presence unless or until a U.S. government official formally determines that they have lost their valid status.
DHS Policy Shift in 2018
DHS announced an abrupt change in this policy in August 2018, by stating that, effective immediately, persons with F, J, or M visas who stop going to school or who stop their training immediately begin to accumulate unlawful presence, without the requirement of any formal determination by a DHS official.
Federal Court Decision
A number of colleges, organizations, and noncitizens filed a federal lawsuit in North Carolina against DHS, asserting two main things: (1) that DHS’s policy shift was a “rule” change that required that they give advance notice of the proposed change and give the public a chance to provide comments on the proposal, and (2) that the policy shift is unlawful because it conflicts with established immigration laws that Congress has passed.
In May 2019, the court issued a preliminary injunction against the DHS policy shift while the court considered the merits of the case.
On February 6, 2020, the court issued a final decision, agreeing with the colleges, organizations, and noncitizens that the DHS policy shift is unlawful for both reasons described above: (1) the policy shift was a “rule” that requires the notice-and-comment procedure, and (2) the policy shift conflicts with federal immigration law. The court permanently blocked DHS from implementing the policy shift against anyone, anywhere in the world.
We will need to wait and see if DHS appeals the court’s decision. For now, the DHS policy is permanently blocked.