July 22, 2019

July 22, 2019

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Judge Orders Nationwide Preliminary Injunction Blocking Enforcement of Automatic Accrual of Unlawful Presence

The U.S. District Court for the Middle District of North Carolina has issued a nationwide preliminary injunction halting the enforcement of the Trump administration’s August 2018 policy memorandum that changed when “unlawful presence” accrues for foreign students and exchange visitors.

The Unlawful Presence Policy

Unlawful presence is defined as presence in the United States outside the period of authorized stay. Prior to the Trump administration’s August 2018 policy memorandum, unlawful presence for international students and scholars in F-1 or J-1 status was triggered upon a formal finding by U.S. Citizenship and Immigration Services (USCIS) or an immigration judge that a status violation had occurred. Under the new policy, however, unlawful presence begins to accrue automatically upon the occurrence of a status violation, or on August 9, 2018 (for violations that occurred before then). Because there is no notice or formal adjudication requirement, individuals who unknowingly violate their status may not realize that they have begun to accrue unlawful presence until they apply for a visa or change of status.

The accrual of unlawful presence can have significant consequences. Individuals who accrue 180 days of unlawful presence may be subject to a three-year bar to admission into the United States. Those unlawfully present for a year or more may trigger a 10-year bar to admission. Individuals who have triggered either the 3- or 10-year bars are generally not eligible to apply for a visa or lawful permanent residency (a green card).

Impact of the Injunction

The preliminary injunction temporarily prevents USCIS from enforcing the August 2018 policy memorandum. While the injunction is in effect, foreign students and exchange visitors will not begin to accrue unlawful presence unless they have received a formal finding of a status violation by USCIS or are ordered to be excluded, removed, or deported by an immigration judge.

Regardless of which policy is in effect, foreign students and exchange visitors may want to consult with their international student advisors prior to accepting summer internships or employment.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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Miguel Manna
Of Counsel

Miguel works closely with both large multinational corporations and individuals to strategize the most successful pathways to accomplish their immigration goals.  In so doing, he balances the needs of his clients with the complex requirements of the federal statutes and regulations.

Miguel is a native of Caracas, Venezuela.  Before moving to the United States, he lived in Panama, Ecuador, Hong Kong, Taiwan, and Japan.

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Melissa Manna, Ogletree Deakins Law Firm, Raleigh, Immigration Practice Group Writer
Immigration Practice Group Writer

Melissa Manna is an Immigration Practice Group Writer. Her primary focus is writing and editing legal articles relating to immigration for the firm’s online and print publications, websites, and newsletters.

Prior to joining Ogletree Deakins, Melissa spent 9 years as in-house counsel at TowerCo, one of the largest independent wireless tower companies in the U.S., representing the company in all aspects of commercial real estate. During that time she managed due diligence, advised and implemented risk management solutions, and closed transactions valued in the hundreds of millions of dollars.

Before TowerCo, she was an attorney with Alan Gordon Immigration and Naturalization Law in Charlotte, NC, representing large and small companies, investors, entrepreneurs, and families in all stages of the immigration process. She regularly appeared before U.S. Citizenship and Immigration Services to advocate on behalf of clients, as well as the EOIR Immigration Court in Atlanta to defend clients against removal and deportation.

Melissa received her J.D. from Pennsylvania State University, Dickinson School of Law and her B.A. in Journalism from The College of New Jersey. She is licensed by the North Carolina Bar.

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