Government Withdraws Appeal in Guilford College Case, Making District Court Decision on USCIS Unlawful Presence Memo Final

Government Withdraws Appeal in Guilford College Case, Making District Court Decision on USCIS Unlawful Presence Memo Final

AILA Doc. No. 18102471 | Dated August 3, 2020

August 3, 2020

The government withdrew its appeal and so the court granted the government’s motion to voluntarily dismiss the case. (Guilford College, et al., v. Wolf, et al., 8/3/20)


February 6, 2020

The U.S. District Court for the Middle District of North Carolina granted the plaintiffs’ motion for partial judgment and issued a permanent, nationwide injunction, stating that, “the United States Citizenship and Immigration Services’ August 9, 2018 memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants” (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications.” (Guilford College v. Wolf, 2/6/20)

“In sum, because the August 2018 PM was promulgated in violation of the APA’s notice-and-comment requirements, the Court will “hold it unlawful and set it aside”—not just for the named Plaintiffs, but for all those subject to its terms. Furthermore, because the unlawful-presence policy embodied in the August 2018 PM conflicts with clear statutory text, no amount of adherence to procedure can rectify the memorandum’s defects unless and until Congress amends the INA. Accordingly, the Court will vacate the August 2018 PM and permanently enjoin its application nationwide.”

Politico reported that, “The policy in dispute involves how immigration officials calculate the duration of a foreigner’s “unlawful presence” in the U.S. Several American college presidents sued over the change, arguing that it could jeopardize more than one million foreign students, scholars, and others who sometimes lose their legal status when switching schools or for other reasons.”


May 3, 2019

A district court judge for the Middle District of North Carolina issued a nationwide preliminary injunction, effective immediately, enjoining USCIS’s memo titled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” originally issued on May 10, 2018, and updated on August 9, 2018, that went into effect on August 9, 2018, until further order of the court. The memo penalized international students for overstaying or violating the terms of their visas, even accidently. (Guilford College v. McAleenan, 5/3/19)

AILA’s Administrative Litigation Task Force Chair Ronald Klasko provides a practice pointer discussing the ramifications of this decision.


April 4, 2019

Interim report on litigation challenging the August 9, 2018, USCIS Policy Memorandum, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” including full transcript of oral argument related to three pending motions:

  • Government’s Motion to Dismiss based on standing and ripeness
  • Plaintiffs’ Motion for Preliminary Injunction
  • Plaintiffs’ Motion for Summary Judgment

January 28, 2019

The court granted a temporary restraining order, barring application of the new USCIS unlawful presence policy to the two individual named plaintiffs, both of whom are MAVNI recruits who entered on F-1 visas and who would otherwise suffer imminent harm if the policy is applied to them.


January 10, 2019

Defendants filed a brief in Opposition to Plaintiff’s Motion for Preliminary Injunction and Partial Summary Judgment and a Motion to Dismiss Plaintiff’s First Amended Complaint


December 21, 2018

Brief of Amici Curiae in Support of Plaintiff’s Motion for Preliminary Injunction and Partial Summary Judgment, filed on behalf of more than 65 U.S. institutions of higher education.


December 14, 2018

Plaintiffs filed a First Amended Complaint and Motion for Preliminary Injunction and Partial Summary Judgment. Plaintiffs ask the court to suspend the effectiveness, pending resolution of the lawsuit, of the August 9, 2018 unlawful presence policy memo and to take such action on or before February 4, 2019.


October 23, 2018

Plaintiff’s complaint challenging the legality of the August 9, 2018, USCIS Policy Memorandum, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants,” as contrary to the statutory unlawful presence provisions, and violative of the Administrative Procedure Act and the Due Process Clause of the U.S. Constitution. Plaintiffs ask the court to vacate the memorandum, declare it unlawful, and enjoin DHS from applying it. (Guilford College v. Neilsen, 10/23/18)

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