US court stops adverse visa policy, gives relief to Indians

NEW DELHI: A US district court has issued a preliminary injunction that prevents the United States citizenship and immigration services (USCIS) from implementing an adverse policy under which "unlawful presence" of international students (including their dependents, such as spouses and children) is computed retroactively.

This action by the court, pending disposal of the lawsuit, is significant as unlawful presence can result in being barred from re-entering US for a certain period. It spells good news for the 2 lakh odd students from India currently studying in the US. An individual who accrues more than 180 days of unlawful presence before departing from the US can be barred from reentry for three years. An individual unlawfully present in the US for more than a year is barred for 10 years.

The order, dated May 3, relates to a lawsuit filed by several colleges, such as Guilford College, The New School and others, which TOI had reported in its October 26 edition.


Soon after the lawsuit was filed, Paul Hughes, partner at Mayer Brown, and co-counsel to the lawsuit had told TOI, that the objective was to protect the rights of international students. "The new USCIS policy, which upsets more than two decades of consistent immigration practice, is unlawful," he had stated.

The subject matter of the suit is a policy memorandum issued by USCIS (which the court has currently blocked from being enforced), that came into effect from August 9, 2018. Under the revised policy, international students automatically begin to accrue "unlawful presence" in the US the day after they violate their "student status" even if their granted tenure of stay has not expired.


The violation of student status could be owing to no fault of the student. Even a simple failure to update the designated school officer (DSO) of a change in address or a clerical error by the DSO in entering information into the Sevis system (database for international students) such as additional hours of on-site campus work beyond those permissible could result in a student being regarded as "out of status".

The repercussions are extreme. For instance, if a student has unknowingly violated his or her student status, and this is discovered years later, it is likely that the 180-day or even 365-day period would have been crossed. The retroactive computation would mean that the student would be barred from re-entering the US for many years, jeopardising his or her studies or career.

Under the earlier policy, international students did not accrue unlawful presence unless and until there was a specific finding of a status violation by USCIS or an immigration judge. The concerned student then began to accrue unlawful presence only the day after such a decision was made. In their petition, the colleges had pointed out that the earlier policy was objective. If required, the individuals could leave the US within 180 days and avoid being barred re-entry into the US for three or 10 years.

"The court found that the colleges are likely to succeed on their claims that August 9 policy memorandum was promulgated in violation of regulatory procedures and that it conflicts with the Immigration and Nationality Act. The court concluded that under the circumstances of the case, a nationwide preliminary injunction is appropriate," explains Emily Neumann, Texas based partner at Reddy & Neumann, an immigration law firm. For now, USCIS has to revert to its earlier policy, pending disposal of the suit, she adds. Several senators from the Democratic Party had also urged USCIS to rescind the new "unjust" policy.