Tag Archive for: J and M Nonimmigrants

Cyrus Mehta

Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants?

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By Cyrus D. Mehta and Amani M. Abuhamra*

In a promising development for F, J, and M nonimmigrants battling unlawful presence policy, a federal district court in North Carolina has granted a preliminary injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The August 2018  Policy would render students in F, J and M status unlawfully present thus subjecting them to 3 and 10 year bars  from reentering the United States.

The May 3, 2019 Guilford College et al v. Mcaleenan et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction prohibiting USCIS and DHS from “enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit.”

As previously discussed on our blog, the August 2018 Policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 Policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

Plaintiffs in the Guilford College case sued DHS and USCIS alleging, among other things, that 1) USCIS had issued the August 2018 Policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 Policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court held that for the purposes of granting the Preliminary Injunction, the Plaintiffs had demonstrated a likelihood to succeed on their challenges to the policy, and found that the Plaintiffs were “likely to suffer irreparable harm absent entry of a preliminary injunction.”

Promising decision for future litigation challenging USCIS policy memos

For immigration lawyers fighting harsh USCIS policies and denials of petitions on behalf of their clients, the possible ramifications of Judge Biggs Opinion and Order are promising.

The Court found the Plaintiffs likely to succeed in showing that the language, purpose, context, and effect of the USCIS policy rendered it a legislative rule. This is significant because “[f]or a legislative rule to be valid … it must have been promulgated in compliance with the APA’s notice and comment procedures [under U.S.C. § 553].” So, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy.

This may open the door for future litigation challenging other USCIS policy memos issued without proper APA notice and comment procedure. Attorneys can now look to challenge other USCIS changes to policy that have legislative rule characteristics, and similarly subject them to challenge for failing to follow proper APA rulemaking procedure. These could include, for example, USCIS’s  October 23, 2017“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” and USCIS’s February 23, 2018 “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. Both these policies, see blogs here and here, contradict existing regulations.  In fact, the February 23, 2018 policy requiring petitioners who place H-1B workers at third party sites to impossibly rigid itinerary and documentary requirements is being challenged in federal court. At a recent hearing on plaintiff’s motion for summary judgement, the judge sharply questioned the high rate of denials under this USCIS policy that plaintiffs allege was designed to kill the IT consulting industry business model.

Perhaps even more promising is the effect Judge Biggs decision will have on curtailing USCIS power to alter statutory construction by way of policy changes and promulgating regulations. The decision noted that based on the statutory text of the INA, the Court found it likely that unlawful presence does not begin when one becomes out of status. Therefore, the August 2018 Policy, in altering unlawful presence accrual to commence when one becomes out of status, most likely conflicts with the existing law and is invalid.

The Court’s decision on invalidating policy which conflicts with existing statute may be even more crucial for future challenges to USCIS policies. This is because without the ruling on statutory construction, the USCIS could essentially overcome a future policy challenge by simply engaging in notice and comment procedures beforehand. Attorney H. Ronald Klasko, who serves as co-counsel and immigration subject matter expert in the Guilford College litigation, thinks the Court’s decision instead makes it harder for USCIS to get around policy challenges, because “if the interpretation of unlawful presence embodied in [a] Memorandum conflicts with the INA as a matter of law, that defect could not be addressed even by properly promulgated regulations. Rather, it would require a statutory change from Congress.”

So what does the preliminary injunction mean for current F, J and M nonimmigrants and the immigration lawyers who advise them?

Though certainly a victory, there now exists some doubt and uncertainty regarding how much reliance can be placed on the Guilford College preliminary injunction. The nationwide injunction, which will prohibit enforcement of the unlawful presence policy by USCIS until the Court issues its final order, has left many unsure as to what the preliminary injunction means for currently at-risk nonimmigrants. Should the Court rule in favor of USCIS and the August 2018 Policy is reinstated, what would that mean for the nonimmigrants who were at risk of triggering bars to admission prior to the preliminary injunction? The following scenarios highlight this uncertainty:

Scenario 1: A PhD student on an F-1 visa travels out of the country after the May 3rd preliminary injunction is issued. Prior to the preliminary injunction, the student was at risk of triggering a 3-year-bar of admission for having accrued over 180 days of unlawful presence without his knowledge. This was due to a reporting mistake the school made in regards to his course load which caused him to inadvertently fall out of status. If the student returns to the country on an O-1 visa while the preliminary injunction is still in effect, and the Court then issues a final ruling upholding the August 2018 Policy shortly afterwards, will the student be found to be inadmissible under 212(a)(9)(B)(i)(I)or(II)?

Scenario 2: A research scholar on a J-1 visa discovers she inadvertently violated her status months prior causing her to unknowingly accrue unlawful presence under the August 2018 Policy. Though she had not yet accrued 180 of unlawful presence when the preliminary injunction was ordered on May 3rd, she was close. Today the research scholar visits her attorney and informs him that tomorrow marks 180 days since she has fallen out of status. The Court has yet to issue its final ruling and the preliminary injunction is still in place. She is unsure whether she should leave the country tomorrow out of precaution of triggering a 3-year-bar of inadmissibility. She has a lot to lose if she were to travel today, and would like to remain in the country. She wants to know, should the Court lift the injunction in the near future, whether the days in which the government was enjoined from enforcing the policy are considered void from unlawful presence calculation, or whether the upheld 2018 August Policy is effective retroactively?

In scenarios like these, it is unclear how the government would rule. It may be difficult for attorneys to best advise their at-risk nonimmigrant clients due to this ambiguity. Leaving or not leaving the country during the period where the preliminary injunction is in effect should be carefully considered and discussed with clients, all options carefully weighed. It may be best to exercise abundant caution and leave not leave the US in Scenario 1 and leave the US in Scenario 2  Even if the Court lifts the preliminary injunction, it will at least order that the August 2018 Policy not be applicable while the preliminary injunction was in effect and takes effect prospectively. On the other hand, one can also be cautiously optimistic that the plaintiffs will prevail in their motion for summary judgment (expected in June 2019) and that the August 2018 Policy will effectively be rescinded by the Court. After all, a motion for preliminary injunction is only granted when there is a likelihood of success on the merits. There is also a risk that the Court of Appeals will overturn the lower court’s decision even if the plaintiffs prevail on the merits. Nevertheless, despite the risks, the Guilford College preliminary injunction is cause for celebration, and as Facebook’s founder Mark Zuckerberg once famously said, “The biggest risk is not taking any risk…”

(This blog is for informational purposes only, and should not be considered as a substitute for legal advice)

* Amani Abuhamra is pursuing her JD degree at Brooklyn Law School and is  currently an Extern at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

USCIS Finalizes Unlawful Presence Policy Putting F, J And M Nonimmigrants In Great Jeopardy

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The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1).

Prior to August 9, 2018,  foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the policy memo, the USCIS officer should consider information relating to the alien’s immigration history, including but not limited to:

  • Information contained in the systems available to USCIS;
  • Information contained in the alien’s record; and
  • Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny, if any.

The final policy purports to make one concession from the draft policy, which is that if a nonimmigrant in F, J or M nonimmigrant classification makes a timely filing for reinstatement of status, then unlawful presence will not accrue during the pendency of this request. In the case of students in F-1 status, a reinstatement application will be considered timely filed if the applicant has not been out of status for more than 5 months at the time of filing for a request for reinstatement under 8 CFR § 214.2(f)(16).  If the reinstatement request is approved, then the period of time an F-1 nonimmigrant was out of status prior to filing the application, along with the period of time during the pendency of the request, will not be counted as unlawful presence. If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. Whether or not the application for reinstatement is timely filed, USCIS said, an F, J, or M nonimmigrant “whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.”

USCIS also noted that the Department of State (DOS) administers the J-1 exchange visitor program, to include reinstatement requests. If DOS approves the reinstatement application of a J nonimmigrant, “the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated,” USCIS said.

Unfortunately, most students may never know that they fell out of status until it is too late and they may never have an opportunity to file for reinstatement. Students will also likely be found to have violated status if they pursued practical training that is perceived as not being consistent with the regulations.

Esteemed colleague and immigration law expert Stephen Yale-Loehr has compiled a list of 50 examples how an international student might inadvertently or unknowingly fall out of status and start to accrue unlawful presence under the new guidance. Many of these examples arise from mistakes by the school.  For instance, a designated school officer (DSO) may mistakenly complete a record, which will indicate to a USCIS officer that the student has remained in the United States beyond the end date of the program, and may have also worked on campus in violation of F-1 status. Status violations can also result from inadvertent miscommunications between school officials. An undergraduate student receives permission from an academic advisor (but not the DSO) to drop a course. The student is now registered for 11 rather than 12 semester credit hours. Later, the USCIS deems her to be in violation of status and accruing unlawful presence.

The USCIS has already begun to lay traps in order to nab students who may have unwittingly violated status. Recent RFEs issued after the filing of a change of status request from F-1 to H-1B require a student to meticulously demonstrate that he or she maintained status during post-completion practical training, including proving that the student was not unemployed for more than the requisite amount of time. The student must also prove that the employment, including an unpaid internship, was related to the major field of study.  Here is one example inquiring whether a student maintained status during a routine period of optional practical training:

F-1 OPT: Students engaging in initial F-1 post-completion Optional Practical Training (OPT) may not accrue an aggregate of more than 90 days off unemployment during the initial post-completion OPT period. Students granted the 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total OPT period including any initial OPT and the 17-month OPT extension. Students granted the 24-month OPT extension may not accrue an aggregate of more than 150 days of unemployment during the total OPT period including any initial OPT and the 24-month OPT extension. Further, students engaging in F-1 post-completion must engage in at least 20 hours or more per week of employment that is directly related to the student’s U.S. major of study. Lastly, unpaid internships may meet the OPT employment requirements if the internship is directly related to the student’s U.S. major of study and the internship complies with all labor laws. Please provide evidence that the beneficiary maintained the beneficiary’s F-1 status during post-completion OPT. Evidence may include but is not limited to the following:

-A list of all employers the beneficiary has worked for under post-completion OPT and the periods the beneficiary worked for those employers;

-Copies of all pay records/stubs for the beneficiary from the starting date of post-completion OPT to the present time; and

-Evidence that the beneficiary worked at least 20 hours or more per week in a position is directly related to the beneficiary’s U.S. major of study.

Similarly, maintaining status through Curricular Practical Training (CPT) is frequently challenged in RFEs by asking for evidence that the CPT was an integral part of the beneficiary’s degree program. The regulation at 8 CFR § 214.2(f)(1)(i) leaves undefined “curricular practical training program that is an integral part of an established curriculum” thus leaving it open for a subjective interpretation.  Also, where the CPT commenced immediately upon the student’s enrolment in the program, the USCIS questions whether immediate participation in CPT was required for the beneficiary’s studies.

A student can also be found to have violated status due to an ambiguity in the rules providing for the maximum amount of time in practical training. 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. 8 CFR § 214.2(f)(10)(i) further provides that “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” This could be interpreted to mean that a student can receive more than one year of CPT, and such CPT is routinely granted by DSOs through the SEVIS system that is administered by ICE. But USCIS is now interpreting this to mean that the total time that a student is entitled in any sort of practical training is 12 months even though ICE, its sister agency, authorized more than 12 months of CPT. USCIS is disregarding the suggestion in 8 CFR § 214.2(f)(10)(i) that a student may be entitled to more than 12 months of CPT.

Upon receiving such an RFE, it is important to submit evidence to overcome USCIS’s doubts. Still, it may be difficult to challenge USCIS’s interpretation that the regulation at 8 CFR § 214.2(f)(10) only authorizes a total of 12 months of practical training, even though 8 CFR § 214.2(f)(10)(i) appears to suggest that CPT can be granted in excess of 1 year. It may also be difficult to demonstrate to the USCIS’s satisfaction that the CPT was an integral part of an established curriculum. If the request for a change of status is not granted, the F-1 nonimmigrant would have started accruing unlawful presence as of August 9, 2018. In the event of the student departing later than February 5, 2020, he or she will be barred from entering the US for 3 years. After February 5, 2020, there will be no such grace period, and prior status violations that were in excess of 180 days will result in 3 year or 10 year bars to reentry upon the student departing the United States. The student may not be able to change or adjust status in the United States, and thus will be caught in a federally imposed Catch-22 situation.

The unlawful presence policy compounds the plight of the nonimmigrant who may also receive a Notice to Appear and be placed in removal proceedings under yet another USCIS policy designed to make life more difficult for law abiding nonimmigrants. Some are deciding to withdraw the request for change of status, upon receiving difficult to overcome RFEs, and leave the United States, prior to February 5, 2020, so that they can process their H-1B visas at a US consulate abroad. While such a strategy may allow the applicant to escape being issued a Notice to Appear, it could cause issues at the US consulate where a consul may still want the applicant to justify whether the CPT program was bona fide. On the other hand, if the applicant is placed in removal proceedings, and if voluntary departure is issued by an Immigration Judge prior to the accrual of unlawful presence of one year or more, then there is an escape hatch pursuant to INA § 212(a)(9)(B)(i)(I). The 3 year bar does not apply to those who departed after the commencement of proceedings and before the accrual of 1 year of unlawful presence (as there is explicit language to this effect in the provision). If the voluntary departure order is issued after 1 year of unlawful presence,  then the ten-year bar would trigger under INA § 212(a)(9)(B)(i)(II) would apply. There is no escape hatch to the 10 year bar as there is to the 3 year bar whilst in removal proceedings. Further ethical and strategic considerations regarding representing beneficiaries of denied requests in removal proceedings can be found in my blog here.

The final policy will not just cause havoc to nonimmigrants snared with technical or perceived violations of status, but schools will also face liability for errors by DSOs. Challenging the policy in federal court is indeed the need of the hour, and there is an urgent need for universities, hospitals and research institutions to come forward as plaintiffs! The 3 and 10 year bars, or the permanent bar under INA § 212(a)(9)C), are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under INA § 212(a)(9)(B)(ii), which provides:

“…an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The new policy blurs the difference between being out of status and unlawfully present, and thus violates INA § 212(a)(9)(B)(ii). If the USCIS wanted to so radically change its prior interpretation of unlawful presence for F, J and M nonimmigrants, it ought to have promulgated a rule through a more formal notice and comment under the Administrative Procedure Act. Finally, the policy violates the due process rights of these nonimmigrants as it imposes draconian penalties, 3 and 10 year bars, for status violations for which they never received formal warning and notice. All these are ripe grounds, among many others, for a successful challenge to this flawed policy in federal court!

 

Cyrus Mehta

USCIS Improperly Blurs Distinction Between Violation of Status and Unlawful Presence for F, J and M Nonimmigrants

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U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum on May 10, 2018, “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The memo abruptly revises previous policy guidance in the USCIS Adjudicator’s Field Manual relating to this issue. The new guidance is effective August 9, 2018, and after reading this blog, it is hoped that readers are sufficiently shocked and motivated to submit comments as the radical departure from previous policy will jeopardize the ability of many nonimmigrants, mainly foreign students, from returning to the United States for unwitting or inadvertent status violations.

There has always been a strict distinction between violating status and being unlawfully present in the United States. One can be in violation of status without being unlawfully present. Even if an F, J and M student dropped out of school or engaged in unauthorized work, he or she would be considered to have been in violation of status but not accruing unlawful presence. This is because an F, M and J nonimmigrant is usually admitted for a Duration of Status (D/S) rather than up to a certain date. An F, M or J can maintain status so long as they remain enrolled in the educational institution or participate in activities pursuant to that status, which is why they are admitted under D/S.  On the other hand, one who is the beneficiary of an approved H-1B or L nonimmigrant petition is admitted only up to the validity date of the petition. F, M and J nonimmigrants are not beneficiaries of prior approved petitions filed by sponsors.

The new policy states various ways in which F, J, and M nonimmigrants and their dependents begin accruing unlawful presence. For example, F, J, and M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless the nonimmigrant had already started accruing unlawful presence based on several scenarios under the prior policy discussed below.

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA 212(a)(9)(B)(i)(I) & (II).  Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA 212(a)(9)(C)(i)(1).

The new policy supersedes existing policy, which is that foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

By contrast, one admitted under an approved H-1B or L visa petition up to a certain date starts accruing unlawful presence after remaining beyond that date while a student who was admitted under D/S did not unless there was a violation of status finding by the USCIS or by an immigration judge. This holds true even with respect to a nonimmigrant admitted under a date certain visa. If the H-1B or L nonimmigrant violates status during the validity period of the admission, he or she will be in violation of status but will not accrue unlawful presence unless there is a formal finding by the USICS or an immigration judge.

The prior policy made more sense, and maintained the important distinction between maintenance of status and lawful or unlawful presence. The 3 and 10 year bars, or the permanent bar, are extremely draconian and should only be triggered when the nonimmigrant goes beyond a date certain expiration date. This is consistent with the statutory definition of unlawful presence under 212(a)(9)(B)(ii), which provides:

“….an alien is deemed to be unlawfully present in the United States if the alien is present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled”

The new policy blurs the difference between being out of status and unlawfully present. Unlawful presence ought to only trigger when one goes beyond an expiration date and not when there is a contestable violation of status. If a student in F status is in violation of that status, he or she can be placed in removal proceeding and may contest the allegation in the proceeding. If the Immigration Judge orders the person removed based on the violation, then the unlawful presence period may commence upon the order. Similarly, when one who is in F status applies for a change of status, and the USCIS finds that the applicant violated status, which the applicant may have been able to contest,  unlawful presence may commence after such a finding.

Under the new policy, a nonimmigrant in F, J or M status may have unwittingly violated that status by not pursuing a full course of study or engaging in an unauthorized activity, and may never get notice of it until much later. Even F-1 students in post-completion practical training could potentially be deemed later to have engaged in unauthorized activity, such as not working in an area consistent with their field of study or a STEM trainee being placed at a third party client site, which USCIS has without notice abruptly disfavored,   or if a school’s curricular practical training does not meet the USCIS’s subjective interpretation of whether the school was in compliance when it authorized such training.   In the meantime, this person would have started accruing unlawful presence and triggered the 10 year bar to reentry upon departing the United States. The dependent spouse would also unfairly accrue unlawful presence as a result of a status violation by the principal spouse. This individual may never get a chance to contest the violation of status after the fact. Unlawful presence should only trigger when there is clear notice of remaining beyond an expiration date of authorized stay in the United States and not when there is a contestable allegation of violation of status. An F, J or M nonimmigrant is now in a worse off position than say an H-1B nonimmigrant admitted under a date certain validity period. A violation of status by the H-1B nonimmigrant during the period of authorized stay would not trigger unlawful presence.  Even after 9/11, when immigration policies concerning students were tightened, we did not see such a cynical change in policy for students as now under the Trump administration where they may not know in time of a status violation only to later realize they have unwittingly accrued unlawful presence triggering the 10 year bar.

This is my preliminary reaction to the new unlawful presence policy relating to F, M and J nonimmigrants. There will be many other good arguments that will be developed and interested persons, along with those who will be potentially affected by 3 and 10 year bars,  are strongly urged to send in comments before June 11, 2018. The memo will take effect on August 9, 2018, but the abrupt change in policy without any proper rationale or justification also potentially makes it ripe for litigation.