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Judge Blocks Immigration Policy Seeking to Deport F, M, And J VISA Holders

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During the first week of February, U.S. District Court Judge Loretta Biggs issued a permanent nationwide injunction against yet another Trump administration immigration policy which made it more difficult for foreign students to remain in the United States after their legal status ran out. According to the ruling, the policy violated federal law and would have jeopardized more than one million foreign students and others who will sometimes temporarily lose their legal status when they switch schools. She also noted that policy was not subject to notice and comment and legally should have been before being implemented.

The Policy & Case: “Accrual of Unlawful Presence and F, J, and M Nonimmigrants”

The case had to do with figuring out when the “unlawful presence” time period begins to accrue when it comes to some nonimmigrant visa holders who are not provided with precise dates upon which their authorized periods of stay expire. This is important because, under the Immigration and Nationality Act, if this person is “unlawfully present,”—i.e. if they stay after the expiration of the period authorized – they can be penalized and barred from reentering for three to ten years.

Take, for example, international students here to study at American universities: Their visas (F, J, and M) are considered valid for “duration of status,” which is essentially when they complete their studies. Until recently, the unlawful presence clock would not begin to run against them until an adjudicator or immigration judge formally identified a violation, however, this 2018 policy changed that, leaving the entire decision up to an adjudicator. As a result, plaintiffs in the case brought a number of claims, including allegations that this is arbitrary and capricious and violates the Due Process Clause of the Fifth Amendment.

Judge Biggs Also Emphatically Supports Individual Judges Blocking U.S. Government Policies Across the Country

In her decision, Judge Biggs also addressed several disparaging comments that came out of the US Supreme Court recently concerning the many injunctions that were put in place against the public charge rule, which would allow for green cards to be denied based on whether applicants currently participate, participated in the past, or may participate in the future in public benefit programs. Specifically, in response to comments made by Supreme Court justice Neil Gorsuch and Clarence Thomas concerning nationwide injunctions put in place by various courts against the public charge rule, ”sowing chaos,” Judge Biggs emphatically defended these injunctions, pointing out that it is important for an injunction to extend beyond named plaintiffs and reach similarly situated individuals so that immigration policy is evenly applied.

 If Immigration Affects You Right Now, You Need to Consult an Immigration Lawyer

There is no question that this administration is implementing rules and policies every day that make green cards, citizenship, petitions for relatives, and other family-based immigration legal needs harder and harder, and it is using a number of illegal means to do so. As a result, if you are affected by these issues, it is more important than ever that you work with an immigration attorney who knows the latest in terms of how the agencies and courts are operating.

For any and all immigration needs, contact the North Carolina immigration attorneys at the Hauter Law Firm, PC today for a free consultation.

Resources:

politico.com/news/2020/02/06/judge-blocks-another-trump-immigration-policy-111705

npr.org/2019/10/11/769376154/n-y-judge-blocks-trump-administrations-public-charge-rule

https://www.hauterlaw.com/trump-administration-claims-to-target-birth-tourism-with-new-rule-which-actually-impacts-b-visitor-visas/

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