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Federal District Court’s Permanent Injunction Safeguards International Students

In a decision of tremendous significance to American colleges, universities, and employers and, perhaps most importantly, to international students on F-1 nonimmigrant visas, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the application of the federal immigration policy memo, Accrual of Unlawful Presence and F, J, and M Nonimmigrants, as well as a corresponding memo with the same title. 

These U.S. Citizenship and Immigration Services (USCIS) policy memos provided guidance regarding the calculation of “unlawful presence” of those holding student (F nonimmigrant), exchange visitor (J nonimmigrant) or vocational student (M nonimmigrant) status, and their dependents, while in the United States. The court ruled that the government cannot enforce these memos, avoiding potential harmful consequences for international students and scholars.

The case in question, Guilford College v. Wolf, was joined by several prominent U.S. higher education institutions via amicus brief to challenge the USCIS’s attempted reinterpretation of a student’s unlawful presence to cover instances where a student is not actually aware that a student status violation has occurred. The new policy would have represented a significant departure from existing policy, where a student only accrues unlawful presence – which has significant immigration consequences – upon an actual finding by the USCIS or an immigration judge.

In May 2019, the same district court granted a preliminary nationwide injunction. The new injunction is permanent and is premised on the agency’s failure to follow the Administrative Procedure Act’s notice and comment guidelines before enacting the new policy. Notably, the District Court indicated that even if there were procedural compliance, the Department of Homeland Security (DHS) would be unable to enact the new policy since the interpretation clearly conflicts with statutory text and Congressional intent. 

It remains to be seen whether the administration will appeal this decision and how this nationwide injunction might fare in light of the apparent disfavor for such nationwide injunctions expressed by multiple Supreme Court justices in other recent immigration litigation.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 42


About this Author

Tejas Shah Immigration Lawyer Barnes & Thornburg Chicago

Tejas Shah has the ability to take the complex and confusing nature of immigration law and simplify it for his clients. His goal is to not only help them comply with the multifaceted requirements of U.S. immigration law, but also to ensure that as clients source global talent, they thrive in environments that can be hostile to migration.

As employers increasingly seek to hire and retain talented foreign national employees to maximize competitiveness, Tejas is empathetic to their needs and offers practical immigration law advice. He is committed to guiding employers of all sizes –...

Mercedes Badia-Tavas Immigration Attorney

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her practice today to her dedication to resourcefulness from years of experience, meticulous preparation and organization skills. This entails a thorough understanding of her client’s industry, operations, culture, practices and financial goals in order to lay out realistic expectations and alternative strategies, as needed. Mercedes believes in being organized in her approach and documentation as a way of helping her clients manage costs. She and her team are committed to employing systems-driven tracking, timely updates and follow-ups with clients, and being pragmatic when unexpected issues arise.

Mercedes advises on a range of employment-based immigration needs, including temporary (nonimmigrant) and permanent (immigrant) visas for executives, managers, investors, professionals, aliens of extraordinary ability, and essential, specialized and skilled workers. She works hand-in-hand with clients on their corporate global mobility policies and compliance documentation regarding sponsoring foreign nationals for employment-based visa classifications. She is regularly involved in I-9 Employment Eligibility Verification (EEV) and H-1B Labor Condition Application compliance.

Mercedes also provides in-house and on-site training on immigration planning for personnel transfers, immigration-related due diligence for mergers and acquisitions, consular applications, and naturalization and citizenship initiatives. She guides clients through internal immigration program administration and monitoring, and trains human resource personnel and other managers on the evolving areas of immigration law and practical integration of immigration policies, procedures and compliance statutes to everyday business operations.

Born in Cuba and bilingual in Spanish and English, Mercedes has sincere compassion for and sensitivity to her clients, keenly aware of the legal land mines and tedious pathways they would navigate through the U.S. immigration system. Whether Mercedes is advising on an immigration matter for an individual relocating from abroad, transferring within the U.S. from another employer, entering the U.S. workforce from student status, looking to build a U.S. business or someone part of a cultural exchange program, she provides her experience with the same strong zeal and commitment toward the best outcome.

Notably, Mercedes has been featured on NPR and Spanish-language broadcasts on immigration topics, many of which included audience call-ins. Prior to joining Barnes & Thornburg, Mercedes had built her own legal practice over nine years as the founding partner of Badia-Tavas Law Group, representing similar categories of clients she now services, with a little more individual and family-type immigration cases involved. She has traveled and lived throughout Latin America.

Michael Durham Immigration Attorney Barnes & Thornburg

Michael Durham has been practicing immigration law exclusively for the past 17 years. Michael’s focused experience allows him to guide his clients through the complex and constantly changing labyrinth of immigration laws and regulations.

Michael’s knowledge and understanding of immigration laws and critical insight into the immigration process qualifies him to represent businesses, employers and individuals alike with a wide range of immigration-related needs and services.

He assists employers, including hospitals, colleges and universities, technology companies, religious...